White v. Clifford, Civil 3455

Citation40 P.2d 749,45 Ariz. 120
Decision Date28 January 1935
Docket NumberCivil 3455
PartiesMARTHA R. WHITE, Appellant, v. NELLIE C. CLIFFORD and JOHN Q. CLIFFORD, Wife and Husband, Appellees
CourtSupreme Court of Arizona

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Reversed and remanded, with instructions.

Mr Francis C. Wilson, Mr. Henderson Stockton, Mr. Emmet M. Barry and Mr. Eli Gorodezky, for Appellant.

Mr. D V. Mulhern and Mr. B. H. Gibbs, for Appellees.

OPINION

LOCKWOOD, C.J.

This is an action by Nellie C. Clifford, hereinafter called plaintiff, and John Q. Clifford, her husband, to recover from Martha R. White, hereinafter called defendant, the purchase price of certain property, which the Cliffords allege they agreed to sell and defendant agreed to buy. Defendant filed a general and a special demurrer, the latter being that the complaint did not show that the General Land Office had accepted a certain deed set up in the complaint as a transfer of the property involved, and answered with a general denial. The demurrers were overruled, and the case was tried to the court on the merits. Judgment was rendered in favor of the Cliffords for the purchase price as sued for, and after the usual motion for new trial, etc., had been overruled, this appeal was taken.

There are thirty-four assignments of error grouped by defendant under seven propositions of law, as required by the rules of court, but, after a careful examination of the record, we think the appeal may be best disposed of by a general discussion of the legal questions so raised, rather than by considering each proposition or assignment separately. In order to do this, we must first state the material facts, taken as strongly in favor of the Cliffords as the evidence will justify. We do this in narrative form as follows:

In February or March, 1932, plaintiff, Nellie Clifford was the owner of desert land entry No. 060553, hereinafter called the entry, which, while a valid and existing desert land entry, had not been perfected so as to entitle her to patent, and the time allowed under the law to perform the acts necessary to secure a patent was approaching expiration.

Defendant was a wealthy woman whose legal residence was and had been in the state of New York, though she was in the habit of spending part of her time in New Mexico, and occasionally visited Arizona, but was never a resident of the latter state. She and one R. C. Woodruff were jointly interested in a stock farm located near plaintiff's entry. For reasons which it is not necessary to discuss, she decided that she would like to secure the land covered by the Clifford entry if it could be obtained on suitable terms, and verbally authorized Woodruff to enter into negotiations for such purchase with the owner, who was then unknown to her. Woodruff at the time was in New Mexico, and communicated with Captain James M. Palmer in Phoenix, asking him to get in touch with the owners of the land and find out on what terms they would dispose of it. After a number of telegrams, letters and telephonic conversations between defendant, Woodruff, Palmer, and the Cliffords, the general effect of which were known by both plaintiff and defendant, the latter verbally authorized the closing of the deal, and on March 26th signed and swore to an application for a desert land entry covering the land embraced in plaintiff's entry, in the form required by the government for such entries, in which she stated that she was a resident of Coolidge, Arizona. This last statement was not a fact, but was made by her in good faith, because she had been informed and believed that her ownership of land in Arizona qualified her to make it. Plaintiff also was informed and believed that defendant had the necessary residence to take title under the Desert Land Act (43 U.S.C.A., §§ 321-323). Apparently at that time it was the intention of the parties to make the transfer by means of a relinquishment by plaintiff and a new entry by defendant, but this idea was obviously abandoned in favor of handling the deal by an assignment of plaintiff's entry to defendant, for this instrument was never used by defendant in an attempt to make entry on the land in question, and on April 14th a certain written escrow agreement was executed by Palmer, signing as agent for defendant, and was accepted by plaintiff Nellie Clifford, through her attorney, which clearly provides for transfer by assignment. This escrow reads as follows:

"Escrow Instructions. Escrow No. 22767.

"JJB Order No. .

"Phoenix, Arizona, April 14, 1932.

"Phoenix Title and Trust Company:

"I hand you herewith the sum of $500.00, and will hand you the further sum of $7500.00 on or before the expiration of 30 days from the date of the deposit with you of the quit-claim deed hereinafter provided for, all of which sum of $8000.00 you may pay to the order of Nellie C. Clifford, upon the compliance with the following:

"At such time as you have a quit-claim deed executed by Nellie C. Clifford and conveying Martha R. White the W1/2 of Section 28, Tp. 5 S., Range 7 E., of the G. & S.R.B. & M., in Pinal County, Arizona;

"An extension from the United States General Land Office to Nellie C. Clifford extending the time for 3 years within which time final proof may be filed on Desert-Land Entry No. 060553 'F' M.D.H.;

"And at such time as the U.S. General Land Office accepts the above described quit-claim deed as a complete transfer from Nellie C. Clifford to Martha R. White of Desert-Land Entry No. 060553 'F' MDH.

"Your charge in connection herewith shall be paid in full by Nellie C. Clifford.

"MARTHA R. WHITE.

"By JAMES M. PALMER, Her Agent.

"Apr. 14, 1932. I hand you herewith the quit-claim deed mentioned above, and agree to the above instructions.

"NELLIE C. CLIFFORD.

"By D. V. MULHERN, Her Attorney."

The $500 was placed in escrow by Palmer, and the quitclaim deed by Nellie Clifford and extension of time to make proof were also so deposited, but the General Land Office never accepted the deed as a transfer of title, nor was possession of the land given to defendant. Shortly thereafter, defendant notified Woodruff that on account of her financial situation it was necessary to cancel the whole deal. This information was communicated to Palmer and by him to plaintiff, and shortly thereafter Palmer returned to Woodruff and papers which he had, and, so far as defendant was concerned, nothing more was ever done by her in furtherance of the matter. Thereafter this suit was brought.

The first question we consider is whether the contract of purchase is within subdivision 6 of section 1521, Revised Code of 1928, requiring certain instruments to be in writing, which reads as follows:

"6. Upon an agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the...

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2 cases
  • Clifford v. White
    • United States
    • Arizona Supreme Court
    • 23 Octubre 1939
    ...noticed and of the construction placed upon them by this court. The former opinion states the facts in the following language [45 Ariz. 120, 40 P.2d 750]: February or March, 1932, plaintiff, Nellie Clifford was the owner of desert land entry No. 060553, hereinafter called the entry, which, ......
  • State v. Machines, Civil 3473
    • United States
    • Arizona Supreme Court
    • 28 Enero 1935

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