Western Sav. & Loan Ass'n v. Robinson

• Decision Date: 15 April 1971
• Docket Number: No. 1,CA-CIV,1
• Citation: Western Sav. & Loan Ass'n v. Robinson, 483 P.2d 806, 14 Ariz.App. 393 (Ariz. App. 1971)
• Parties: WESTERN SAVINGS AND LOAN ASSOCIATION, an Arizona corporation, Appellant and Cross-Appellee, v. Ella ROBINSON, Individually and as Executrix of the Estate of Doran Robinson, deceased, Appellee and Cross-Appellant. 1272.
• Court: Arizona Court of Appeals

Page 806

483 P.2d 806

14 Ariz.App. 393

14 Airz.App. 393 WESTERN SAVINGS AND LOAN ASSOCIATION, an Arizona corporation, Appellant and Cross-Appellee, v. Ella ROBINSON, Individually and as Executrix of the Estate of Doran Robinson, deceased, Appellee and Cross-Appellant.

No. 1 CA-CIV 1272.

Court of Appeals of Arizona, Division 1, Department B.

April 15, 1971.

Rehearing Denied May 12, 1971.

Review Denied June 8, 1971.

Streich, Lang, Weeks, Cardon & French, by B. Michael Dann, Phoenix, for appellant and cross-appellee.

Johnson, Shelley, Roberts & Riggs, by J. LaMar Shelley, Mesa, for appellee and cross-appellant.

HAIRE, Judge.

Although the pleadings filed in this case presented several claims and counterclaims in the trial court, on this appeal we are only concerned with the plaintiffs' claim for declaratory judgment relief which was denied without prejudice, and the defendant's counterclaim for strict foreclosure which the trial court dismissed with prejudice.

Plaintiffs Robinson ¹ filed their complaint seeking a declaratory judgment that pursuant to certain warranty deeds and 'deeds of confirmation' the occupants of described lots owned by plaintiffs had the right to use and enjoy certain golf course facilities owned by the defendant. The defendant denied that plaintiffs had any such rights and counterclaimed seeking to have its previously foreclosed mortgage lien declared prior and superior to any rights which plaintiffs might have, and further seeking foreclosure of that lien against plaintiffs.

At the time the complaint was filed plaintiffs were the owners of Lots 17, 18 and 19 Apache County Club Estates, Unit Two, situated near Apache Junction, Arizona. ² These lots were adjacent to a golf course owned by the seller, and the purchase included not only the lot but certain golf course rights described in the warranty deed from Apache to plaintiffs as follows:

'The Grantor, the owner and operator of an eighteen (18) hole golf course on properties hereinafter described and herein referred to as the subservient estate, in consideration of the Grantee's purchase of the hereinabove described real property, herein referred to as the dominant estate, and for other good and valuable consideration flowing to said Grantor, does hereby give, grant and convey unto the Grantee, their heirs, executors, administrators and assigns, nine (9) perpetual memberships in said golf club and course and the perpetual right to use and enjoy all the rights in the subservient estate, and the facilities thereon and hereafter placed thereon, for the use and enjoyment of all of the rights, conveniences and privileges attendant upon said nine (9) perpetual memberships without limitations and without further cost. The subservient lands are those certain one hundred twenty-eight (128) acres, more or less, in Maricopa County, Arizona, set forth and particularly described in that certain instrument recorded in Docket 4537 at Page 534, records of Maricopa County, Arizona.

'The memberships, and the rights attendant thereupon, granted hereby are considered and deemed to be, and are, a covenant running with the land and are appurtenant to the dominant estate lands first hereinabove described. The nine (9) golf membership, and the right to use and enjoy all of the subservient lands and the facilities thereupon or hereafter placed upon said subservient lands, shall belong to the occupants of the dominant estate and a single membership is hereby defined to be a family group occupying a portion or all of the dominant estate. The memberships and the rights granted hereby are subject to prior encumbrances and liens of record.

'The grant hereby made with respect to the use of said golf course and facilities is not an exclusive right and the Grantor specifically reserves the right of granting other memberships and allowing and authorizing the use of said golf course and facilities by others, and without limitation.'

The plaintiffs required as a part of the purchase escrow agreement that plaintiffs receive not only the warranty deed from Apache, but also a 'Deed of Confirmation' from Home Savings & Loan Association, the holder of a mortgage on the golf course premises. This 'Deed of Confirmation' had been prepared by the attorneys for plaintiffs and the attorney for Apache, and the provisions pertinent to this appeal read as follows:

'Whereas, concurrent with the execution of this instrument, Mortgagor is selling to DORAN ROBINSON and ELLA ROBINSON, his wife, hereinafter called Purchasers, certain lands other than those encumbered to Mortgagee, to wit:

Lot 19 and the South Half of Lot 18, APACHE COUNTRY CLUB ESTATES UNIT TWO, according to book 98 of Maps, page 1, records of Maricopa County, Arizona.

and in connection with said sale is granting and conveying to Purchasers, their heirs and assigns, certain golf club memberships, with all of the rights and privileges attendant upon said memberships, which memberships will be exercised and enjoyed by the Purchasers, their heirs and assigns on the golf course lands of Mortgagor, heretofore encumbered to Mortgagee, said Memberships, rights and privileges constituting easements appurtenant to the lands sold to Purchasers, and

'NOW, THEREFORE, Mortgagee does hereby consent to and recognize the aforesaid Mortgagor's grant, transfer and conveyance to Purchasers of the hereinabove described golf club memberships; expressly provided, however, that the same shall not in any way limit, restrict or affect Mortgagee's right, title, security or interest under the above described mortgage, or impose upon Mortgagee, or with respect to the mortgaged property, any affirmative or negative duty or restriction whatsoever, except as follows: Mortgagee agrees that so long as the said mortgaged property is in fact in use and operated as a golf course that Mortgagee will not deny to the Purchasers access to the mortgaged property, or to the use thereof, for golfing privileges, upon any terms, conditions, considerations or restrictions greater, more restrictive or more onerous than the terms, conditions and restrictions applicable to such golfing privileges as pertain to said golf club memberships as granted to Purchasers by Mortgagor in connection with the above-referred to sale.'

The deeds of confirmation were executed by Home Savings and delivered to the escrow agent with a letter authorizing the escrow agent to record the same '* * * upon collection for the benefit of Home Savings & Loan the total amount of $8,659.34.' The letter further advised the escrow agent that in the event these funds were not collected the deeds were to be returned immediately to Home Savings. The escrow was completed and closed. Subsequent to the purchase by plaintiffs, Apache defaulted on its mortgage, the mortgage on the golf course premises was foreclosed, and Western Savings (successor by merger to Home Savings) as mortgagee became the purchaser at the foreclosure sale. Although the above-described warranty deeds and deeds of confirmation were duly recorded prior to commencement of the foreclosure proceedings, plaintiffs were not named as defendants in the foreclosure litigation.

The questions raised on this appeal result from the trial court's rulings on plaintiffs' and defendant's motions for summary judgment. The trial court granted plaintiffs' motion for summary judgment on Count II of Western's counterclaim, dismissing With prejudice that portion of Western's counterclaim which sought to establish that defendant's mortgage was prior and superior to any golf course rights which plaintiffs might have as a result of the warranty deeds and deeds of confirmation. Defendant does not bring to the attention of the Court any fact issue which would question the procedural propriety of the summary judgment remedy, but does question the correctness of the trial court's decision which impliedly found that plaintiffs' golf course rights were not subject to foreclosure under defendant's mortgage. For the reasons hereinafter stated, we hold that the trial court correctly dismissed with prejudice Count II of Western's counterclaim and that plaintiffs' golf course rights (without determining at this point the exact extent of such rights) were prior and superior to defendant's mortgage lien and therefore not subject to foreclosure as requested by defendant's counterclaim.

Inasmuch as the deeds of confirmation given by Western's predecessor in interest were duly recorded, there can be no question but that Western's rights as a successor under the mortgage...