Weiner v. Romley

• Decision Date: 08 May 1963
• Docket Number: No. 7159,7159
• Citation: 381 P.2d 581,94 Ariz. 40
• Parties: Sam WEINER, Appellant, v. H. M. ROMLEY, Appellee.
• Court: Arizona Supreme Court

Page 581

381 P.2d 581

94 Ariz. 40

Sam WEINER, Appellant, v. H. M. ROMLEY, Appellee.

No. 7159.

Supreme Court of Arizona, In Banc.

May 8, 1963.

Johnson & Stewart, Phoenix, for appellant.

Lewis, Roca, Scoville, Beauchamp & Linton, John P. Frank, Robert C. Kelso and Jeremy E. Butler, Phoenix, for appellee.

JENNINGS, Justice.

This is a quiet title action justituted by appellee Mrs. Ruby Romley against appellant Sam Weiner. The suit was tried on stipulated facts and judgment entered in favor of the appellee.

The stipulated facts show that in 1956 Weiner sued H. M. Romley on a negotiable instrument. In the course of this litigation, but prior to judgment, Weiner attached an automobile which was the separate property of Mrs. Romley, who was not a party to that action. In order to have the attachment released the following letter was prepared and executed under the direction of Mr. Bomley's attorney.

'April 10, 1957

'Mr. Marvin Johnson

'Dear Sir:

'My wife and I own a piece of rental property located at 2243 East Mulberry, which is a three bedroom house, one and one-half baths which is rented on a yearly lease.

'We will not sell this house without written permission from you pending the outcome of the Sam Weiner litigation.

'/s/ H. M. Romley

'H. M. Romley

'/s/ Ruby E. Romley

'Ruby E. Romley

'WITNESS:

'/s/ Robert E. Kersting

'Robert E. Kersting'

This realty, however, was also Mrs. Romley's separate property. The parties stipulated that at the time of the execution of the letter Mrs. Romley was told by her husband's attorney to go ahead and sign it. Mrs. Romley read it but did not realize quite what the letter meant except that it would accomplish the return of her automobile. She did not realize that she was signing any document that would alter the separate character of the real property referred to in the letter.

Subsequently, the automobile was released, Weiner recovered judgment against Mr. Romley, and the realty was attached and sold by the sheriff in satisfaction of the judgment. This quiet title action by Mrs. Romley followed.

Appellant contends, first, that the appellee did not come into court with clean hands, and second, that she is estopped to deny the representation contained in the letter that the property was owned by both the appellee and her husband.

An action to quiet title sounds in equity, and the maxim that he who comes into equity must come with clean hands applies. Belfer v. Lewis, 79 Ariz. 13, 281 P.2d 794 (1955); Mason v. Ellison, 63 Ariz. 196, 160 P.2d 326 (1945). This Court laid down the principle in MacRae v. MacRae, 37 Ariz. 307, 294 P. (1960), that in determining the applicability of the clean hands doctrine it is the moral intent of the party seeking relief, and not the actual injury done, that is controlling. The Court indicated that it was 'intentionally soiled hands' which could not invoke the jurisdiction of a court of equity. The misconduct which will deprive a part of equitable relief must be willful. Surgical Supply Service, Inc. v. Adler, 206 F.Supp. 564 (E.D.Pa.1962); Barr v. Petzhold, 77 Ariz. 399, 273 P.2d 161 (1954); Ferrick v. Barry, 320 Mass. 217, 68 N.E.2d 690 (1946); Frazier v. Mansfield, 305 Pa. 359, 157 A. 798 (1931).

'If is to be noted that the misconduct which will prevent equitable relief under the clean hands doctrine must have been wilfull. However, when the wrongful act was not wilful but was committed by the plaintiff under an honest belief as to its validity, the plaintiff is not precluded by the clean hands maxim from seeking relief in equity.' Surgical Supply Service, Inc. v. Adler, supra 206 F.Supp. at 571.

There is no evidence that Mrs. Romley acted willfully to deceive the appellant or that she acted is bad faith. When the letter was signed she was not represented by counsel and the record does not disclose that any advice concerning her individual property rights or concerning the difference between community and separate property was given her. There is, therefore, no reason to believe that she acted other than in the honest but mistaken belief that title to the property was an she had represented it to be. We conclude that appellee's conduct in this case is not of such character as to warrant the invocation of the clean hands doctrine.

We next consider the appellant's claim of estoppel. This Court has defined equitable estoppel as:

'the effect of the voluntary conduct of a party, whereby he is absolutely precluded from asserting rights which might have otherwise existed as against another person who, in good faith, has relied upon such conduct and has been led thereby to change his position for the worse. The essential elements of estoppel are that plaintiff, with knowledge of the facts, must have asserted a particular right inconsistent with that asserted in the instant action, to the prejudice of another who has relied upon his first conduct. * * * If any of these essential elements are lacking, there is no estoppel.' City of Glendale v. Coquat, 46 Ariz. 478, 481-82, 82, 52 P.2d 1178, 1180, 102 A.L.R. 837 (1935).

Appellant contends that by releasing the attachment in reliance upon appellee's representation and by giving up his right to litigate the vaidity of his claim to the automobile, he changed his position for the worse. On the other hand, appellee insists that appellant had no right in the automobile whatsoever and the only legal course of action available to him was to release it. In support of his position appellant cites numerous cases which hold that forbearance to press a claim which is honestly and reasonably believed to be valid may be sufficient consideration for a promise even though the claim is ill founded. However true this proposition may be, such conduct is not a substantial or material change of position so as to estop the appellee from asserting her otherwise valid title to the property. The injury or prejudice which is required must be actual and substantial, and not merely technical or formal. Ashwander v. T. V. A., 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936); Knight v. Rice, 83 Ariz. 379, 321 P.2d 1037 (1958). The Supreme...