King v. Uhlmann

consideration, it recovery notwithstanding had received without preclude Chilleen’s sellers by the known bargained- to which was performed fact that she answer consideration, given had con- they superior action sellers. If fact sideration, Builders, obligation the broker’s by their filed Inc. Phoenix Norcraft discharged, completion did commission not have been not render the contract consideration, they impossible give no complaint’s prayer and if did of the view sought they praying showing was made that the sale alternative them. of the as to Set secure dissolution order trust be aside or constructive imposed by proceeds upon the received superior court the sellers. affirmed. that were clear Furthermore McFARLAND, J., STRUCK C. suit, the trans- superior court not for MEYER, BERNSTEIN, LOCK fixed the date have closed action would WOOD, JJ., concur. ex- cross On escrow instructions. they amination, testified Arthen Mrs. Mrs. conversation as sellers filed said the suit was after Chilleen completed could did not feel sale precluded them filing suit because At that time title. giving clear 437 P.2d 928 restraining not issued

bankruptcy had order complete buyers ready to and the George Ellis, Appellants, Roy H. KING these circumstances the sale. Under complete the refusal to sale sellers’ Peil, Jr., and and Richard Ernest UHLMANN did not the title alleged cloud on Title Guarantee & Trust Arizona brokerage discharge obligation their Co., Appellees. Chiate, supra. commission. See Diamond UHLMANN, Appellant, Ernest Regarding restraining order issued court, bankruptcy are satisfied from the we George ELLIS, Appellee. impos- supervening the defense of Nos. 7423. sibility application no here. has Chilleen tract between sellers and Supreme of Arizona. Court e., partially executed, had ren- i. Chilleen In Banc. consideration, bargained-for dered the Feb. 1968. pay promise sellers’ unconditional Rehearing Denied March the broker’s commission was not rendered impossible. Equitable ownership in the inability to

property, subject sellers’ title,

convey good already ac- been

quired by time the re- buyers issued, if straining order was intended,

escrow October 7 as had closed on problem restraining by the presented

order issued on 22 would never October

have arisen. must be remembered sellers

'acquired bankrupt from the restraining

some months before order ground

'was issued.

Norcraft was that claimed Madden, Schaper, Phoe- E. S. John John

nix, ap- appellants and Ellis for pellee Ellis. Wilmer, Wilmer, Phoe-

Snell & Mark nix, appellee appellant, for Uhlmann. Shaw, by Johnson, & Marvin Johnson Peil, Phoenix, appellee, Richard for Jr. Perry, Head, by A. R. Perry, & Coulter Phoenix, appellee, Arizona Title Guar- & Trust Co. antee McFARLAND, Chief Justice: action was in which an is a case This against plaintiff George Ellis as brought Gaffey, Uhlmann, Tracey Ernest A. defendants, Jr., ad- Peil, as Richard prop- certain judication of the superior held the title erty. negoti- sale Uhlmann, subject by Ernest to be ated trust, the date and that since constructive Ernest defendant Billie Uhlmann and his wife Uhlmann held an undivided one-half premises plaintiff George analysis supporting posi- benefit of An extensive subject to a lien in favor of Ernest tion is set forth in 77 A.L.R.2d $10,000. repeal Defendant connection with the sum of re-enactment statute, appealed. apply but the rule same repeal a con- re-enactment of sep- Roy King, plaintiff, brought provision. stitutional Peil, Uhlmann, against arate action brought upon Arizona Title & Trust Guarantee Co. “If an action is a cause * * * action, depends upon deedholder-defendant. The two actions statute, were consolidated. The court rendered continued existence of a judgment against King, repeal by and failed and action is not abated the perfect appeal. pending his re-enactment of statute * * *” 345 trial. A.L.R.2d at 77 Uhlmann first contends the rule supporting Other cases are Jessee jurisdiction trial not court did have Shong Tex.Civ.App, De (1907); S.W. the case had been tried filed and under 1011; Wayne In- Private v. Bureau of system court existing prior to the amend vestigators Cal.App.2d Adjusters, and ment of Article of the Arizona VI Con Cal.Rptr. 194. stitution, brought A.R.S. The action was act, provisions repealed of a but no was rendered re-enacted, which force are continue in until after the amendment of Article VI. previ interruption, rights all without and repeal Defendant contends ously preserved incurred are Article VI Arizona Constitution 336, 345; enforced. 77 Middleton A.L.R.2d 1960 and the enactment of new Article (1896), 282. Taber S.Ct. S.E. VI superior abolished court in which office, public If a the re statute creates a pending action was and established peal statute, accompanied by the superior new He court. asserts it, does re-enactment of the substance a savings omission of clause in the new a new not abolish the and substitute office complete Article VI resulted in the in it; one the old effect is to continue ability superior new court continue All- one in force. 77 A.L.R.2d case; the handling therefore, of the good Co. Steel & Iron v. Sloss-Sheffield jurisdiction motion to dismiss for lack of (1916), 196 Ala. 71 So. Watts should been have sustained. cases Ala.App. (1926), State 109 So. support position cited to are appli not cable. The situation in the instant case is even stronger. The amendment constitutional The correct rule governing the in adopted court was to create an intermediate stant case stated in 82 Statutes § C.J.S. reorganize appeals, and at the time same page at 1010: judicial integrate the whole structure. provided: The amendment repeal “The of a operate statute does “* ** impair or affect rights otherwise any The continued existence of

which have been vested or accrued while legally office heretofore or established the statute was in force. This rule repealed held shall be abolished or applicable rights acquired alike to adoption under article. The stat- contracts and to of action relating authority, to re- utes and rules * * * damages cover jurisdiction, Where torts. a new in force time at the provisions statute continues adoption in force of this article and not statute, an although old herewith, shall, form it re- ap- consistent far as so peals plicable, * * *” apply courts, them the passage, govern moment of its to and such right Ariz.Const., VI, of action created the old Art. § destroyed.” statute not thereby (1960) There equal-division is even another reason to hold any profits basis over continuity

that there was break $12,000 purchase-price no figure. King also jurisdiction superior money crop court. cantaloupe some invested provide A.R.S. 12-123 and 124 §§ was raised some superior failure, jurisdiction had, shall such Ellis was a and this venture $8,000 is conferred King. Constitution. resulting an loss to statute, prior This books agree- date, At later undisclosed action, commencement remains un- King ment orally so modified changed day, provides to this addi- $20,000 top would recover off continuity, tional cd, be need- should profits split. This sale before the would be

adjustment made to to re- allow money he had lost in the canta- cover court, superior We hold that loupe venture. amendment, prior constitutional large quantities of Ellis had interests in amendment, as it has existed since that adjacent property in Bell and Scotts- one there been no same and that has area, in order to assist dale Roads jurisdiction. in All that was hiatus its up proposing agreements Ellis were drawn a accomplished by was the amendment development the of these Uhl- properties. reorganization the and the creation of parties’ mann, Gaffey, Peil, other and appeals. court of appear in Dur- names these transactions. (1) Ernest Uhlmann next that: contends agree- negotiations the these ing leading to sup- to there is insufficient or evidence no ments, other in the placed Ellis confidence its port findings the of the trial court and complete of a and made disclosure parol- subsequent (2) judgment, the and forty holdings. Although the his financial frauds rule the statute evidence and of this was acres of suit which the were violated. in the de- the under included questions requires a these Disposing of velopment admit agreements, defendants King be- summary Roy of evidence. inter- that Ellis them his one-half told acquainted George Ellis when came with development property. est in this These they get that suggested a mutual friend inability to agreements failed might possibly together King in order that acquire financing. necessary in straightening assist out Ellis’s fi- Ellis that this shows The evidence in resident King was not a nancial affairs. dealings throughout and ar- the financial Arizona, stopped Phoe- but he often and placed faith rangements, great Ellis flying nix when to the west coast on busi- The evi- the defendants. confidence ness, some and transact and he Ellis did that handled dence further shows Peil a King business. Ellis showed finding in first Uhlmann for forty-acre near the piece correspondence, deal, doing later tersection Bell Scottsdale Roads and involved drawing up instruments and King that Maricopa County, informed and King Uhlmann. in the from to might purchased it a for reasonable deposition that in his Uhlmann admitted purchase sum. contracted to King him. acting Peil was for price the Osbornes sale property from for development failed agreements After the $12,000 King testi- February financing, it de- lack was because of negotiated that the deal fied Ellis an interest of record expected cided if Ellis had that he Osbornes also and acres, forty in the he then would be able eye keep Ellis to on his' borrowing against acquire funds development King some possibilities. an executed possibility, Pursuing this interest. agreement and Ellis which him between February Ellis called on or about provided sale of event idea, and split King informed him of forty acres, King on an would King Peil the tele- payable then introduced over three annual installments Peil phone. King anniversary he both testified told annual dates of close help one-half, it and Ellis that if would Ellis of escrow first which was $20,000 pic- granted step Norton, take out of the to be under would deed. Dan agent, Peil ture. himself stated the stand estate at the trial testified agreement forty $60,000 substance of acres was worth at King interest, conveyance. had a time Ellis one-half himself forego profit easily willing pretty admitted would that would sell $40,000. step $20,000 help out for There if would was a later interim ar- telephone rangement Ellis. Pursuant to this conver- the transaction altered prepared sation Peil from certain documents east undivided one-halves to an one- cerning forty half acres them King and mailed and west one-half. executed King for him to execute. two and his wife deeds the east one-half go Peil about $10,- also contacted Uhlmanns when first acquiring paid, an interest 000 was pertaining and the escrow quit- Peil King documents mailed the west On was to start one-half then. April claim $10,000 deed from and his wife as or before the first grantors paid, interest was & undivided one-half Arizona Title Guarantee forty acres (the to Ellis his wife Trust Co. agent) escrow recorded grantees for a Kings consideration ten dollars deed Uhlmanns purchase-option .and a agreement forty re- east one-half acres maining purchase dealing interest in the agreement undivided one-half recorded the property. King did not these execute docu- with west one-half. ments, but sent Peil a letter dated March any conveyance There has been never 1956, wherein he not to he want stated did despite Ellis, and, from the Uhlmanns to placed position in he looking to an a frequent his questioning Peil and Uhl- undivided his one-half interest obtain to close, mann as to when he escrow would ‘$20,000. He thought further wrote that he granted was never the one-half interest .any quit-claim to Ellis be delivered and right. to which he claims option when the up, was taken and that he King- Peil both that after testified willing forego any was profit to above they requested Ellis Uhlmann transaction '$20,000 concerning the forty acres he but writing to show them some evidence did want to be left in the situation of that entitled inter- Ellis was to a one-half (cid:127)conveying a interest to Ellis for one-half forty est in the that acres. Ellis denied only ten and dollars then leave Ellis with request made, such a testi- was ever but did option purchase .an remaining to one- negotiations Peil fy that in earlier with $20,000 half placing only for after $200 King-Ellis given copy he had Peil a down. memorandum that was executed After Peil had talked to Uhlmann re- and document, Peil had not seen this n ceived March 3, 1956, King, letter from possession approximately had for Peil explaining sent another letter that that three evidence weeks. The shows help Ellis accompanying documents would King July Peil wrote a letter negotiations King with which just him to inform Peil to requesting requested The letter that familiar. King- King’s understanding of the what n deedan in the undivided one-half interest asking and if forty $10,000 acres to Uhlmann and anything showing that Ellis had record put this There was also a escrow.

' forty interest in the acres. a one-half had purchase agreement one- remaining that nothing There is to record show $10,000. ’half to be which was sold for paid This second one-half ever answered. was to be letter was forty standing pos- that one-half of the acres Peil and Uhlmann discussed the conveyed sibility acquiring an interest in would be to Ellis. Peil’s pursuant forty these discus- acres and to finding The court’s was that at a later The prepared Peil three first sions deeds. agreed time Uhlmann refused to convey Realty ran Uhlmann to Paradise deed from pro- one-half to Ellis unless Ellis could (Peil’s organization). The second was duce evidence of title aliunde. conveyed convey portion a judgment granted in its Ellis construc- deed, ran Paradise first and from tive trust in an one-half of the undivided Realty Tracey Gaffey wife. forty-acre tract, subject $10,- lien of evidence. Both these documents were Uhlmanns, 000 for sums advanced Realty ran Paradise third deed that this trust be executed. ordered George although this deed The court further that deed decreed evidence Peil he had admitted drawn purporting convey an interest Peil testi- such a document. Uhlmann and forty Realty to same acres from Paradise came about. transactions never fied void, Gaffey and his null conveyance be- Uhlmann never made instructions and ordered the escrow such against cause his tax advisor advised Trust and deeds Arizona Title and held reason, left a sale. For some unknown Peil Company according to the be executed Uhlmann; then on these with documents thereof, subject terms trust. Gaffey somehow July trust constructive Proof Paradise which ran from second deed convincing must be established clear and Realty wife, recorded to him testimony. Hernandez, Murillo v. the same. passing 281 P.2d 786. sufficiency prior in Murillo v. of the evidence evidence shows sometime agreed Hernandez, the statement 1957, King became aware we to March Supreme in Paulsen Court of Utah there had never been prop- Coombs, to Ellis a one-half interest Utah erty. quoted following: the escrow King sent letter and we “ directing the instruments should holder question evi- ‘The of whether [the] not be to the Uhlmanns delivered dence is be and con- sufficient to clear court; rescinding the trial [King] vincing primarily he was transaction for the un- finding his should not be disturbed misrepresentations. King due to also sent law say we a matter of less informing letter a to Peil and Uhlmann reasonably that no find one could rescinding them that he was the transac- ” convincing.’ and to be clear evidence tion, legal and that action be forth- would at 791 at coming. He all offered to return sums evidence, rule, looking this Under parties’ money advanced that so say finding the court we cannot quo be restored. This status could was points: be Uhlmann first should disturbed. action, King’s basis of was dismissed agreement that between out the written in the court Ellis. for February of King and Ellis executed fifty cent per to 1954 which entitled Ellis no- there was full trial found profits its sub- $12,000 (and Ellis, King, over meeting tice a of minds and figure of King sequent to the Uhlmann, that modification and Peil to the effect to a one- $20,000) not entitle Ellis any profit does forego would on the sale of is no property. There tract, forty half forty-acre interest that one-half and, Ellis, this contention because need to discuss conveyed acres be to would this, findings on its further, trial court did base Uhl- that the transaction between findings on instrument, base but did its King good mann was into entered Peil, Ellis. Uhlmann, negotiations among parties pursuant the under- faith all to King repudiation any the time from Ellis made agreement and Peil to sell telephone $20,000 King this February call to for at- without Ellis taining therein, then a one-half interest above-quoted why did insert Peil Peil he testified King talked to phrase explana- ? There one rational telephone February 1956, the substance They throughly King’s tion. understood being of their to agreement that was Ellis They March it was letter. knew step King have one-half interest and would repudiation telephone not a agree- of the picture $20,000 out of the for if would ment if King $20,000 that for would sell help Ellis. Uhlmann Peil admitted that Ellis get in the would interest one-half his pre- man in this transaction. Peil any property, repudiation but rather pared quit-claim granted deed which whereby to King would Ellis and his wife a one-half interest look to a interest one-half forty for a acres consideration ten-dollar option Ellis, his to secure to agreement also a purchase-option $20,000 (especially a mere when there was the remaining earnest one-half $200 money quite involved). earnest It is $200 money $20,000 purchase price. trial court, clear to as it towas Kings documents, did execute these court, understanding that of the but King wrote stating Peil these pursuant King agreement documents did not to conform his under- convey would land standing the. telephone conversation. $20,000 Uhlmann and his wife if King position re-affirmed his that he was reconvey a one- Uhlmanns would turn willing forego any profit help half interest Ellis This his wife. but he unwilling leave himself only way King-Uhlmann is the proposed proposed situation that these documents * “* * George help transaction could King would thought create. wrote complete negotiations, [Ellis] any quit-claim to Ellis be delivered would you only familiar.” Ellis option when the up. was taken negotiations King with which was familiar pos- maintains letter refutes ultimately was a transaction which would sible contention Ellis intended result in becoming Ellis’s a titleholder of to have a one-half interest in the forty record of a one-half interest agree. We cannot merely This letter states against so he acres could borrow the same. that King did not put want in a position of granting one-half interpretation This is fur- facts the property where the consideration ther Peil the three deeds substantiated flowing plus to him ten dollars portions up concerning later drew right money keep in earnest $200 forty ran Uhl- acres. These deeds if Ellis not option did exercise Realty mann and his wife to Paradise remaining one-half within six months. organization), Par- (Peil’s and two from 5, Realty. On Para- adise of the deeds from March Peil answered One King’s apologized Realty granted letter and mis dise Ellis an interest for the understanding. forty letter, With this he sent acres. If defendants believed King King King-Uhlmann from to of the March letter documents transaction, any requirement repudiated and him this transaction Peil told “ * * * help $20,000 transfer result in a one-half George to [Ellis] complete why being conveyed negotiations, you Ellis, terest then to with which assurance, Relying upon possible familiar.” interest ever considered Ellis’s King by ne- and his the documents defendants Uhlmann-Peil executed King-Uhlmann to gotiations constitute the trans- the sale from after action. that Uhlmann? Uhlmann’s answer was de- If defendants believed King’s spite letter he letter of March was still. March constituted face its conveyance absolute Ellis would

prepared any honor claim Young, 20 Wright v. not be shown. such produce an Were However, P. 583. when true, inter- explanation its rational it appear render thought circumstances pretation is that defendants the holder unconscionable on the good a deal had made such bene- enjoy and easily legal retain title to therein that a one-half theory of interest, equity, on ficial $20,000 not hesitate they would worth and fraud, impresses construc- implied a an an owner convey any one not one-half thus tive trust on interpretation of record. Defendant’s truly and the one who is in the favor of doubtful, is clear the evidence rather ”*** equitably entitled to same. support the trial court’s convincing at 281 P.2d at 789. King-Uhl- finding that at the time of an mann there was understand- express-parol an there was Because premises would ing that one-half preclude plaintiff trust does not that: conveyed George be merely remedy trust. constructive time, contrary “4. period At a later the statute the defense of means that understanding agreement mere show on a set aside frauds will among parties, all the defendant Uhl- trust, plain ing express-parol but plaintiff convey mann refused to convincing by clear and tiff must show George George plaintiff Ellis unless remedy entitled to evidence that he is produce title Ellis would evidence of reasoning be trust. constructive aliunde.” does frauds that the statute of hind the rule committed Uhlmann contends error was a constructive apply impose a suit to by the He erroneous admission of evidence. ob parol-evidence applies trust also precludes , claims the statute of frauds (Old.) McLaughlin jection. See Snakard showing any the admission of oral evidence 1013; Leimert Co. Walter H. estate, parol- Woodson, Cal.App.2d King- evidence rule was violated because Streeter, 68 Nev. Davidson v. writing, transaction was Cal.App.2d Goldberg, 42 Forman v. what evidence in contravention of 308, 108 P.2d 983. appears on the face of documents vio- these recognizes that the constructive parol-evidence lates the rule. remedy, equitable and states trust applying it in trial court was error the statute Uhlmann admits that the defense known apply of frauds does not to a constructive words, po- it is his trust, “clean hands.” other says that there was no construc nego- prior February sition that tive trust in this case because the trial court inter- tiations Ellis had claimed a one-half findings its own the trust as one defined was- est and that this least agreement formed give Rather this conten- erroneous. than legal express thus definition it anwas discussion, lengthy tion will suffice parol trust and thus to the defense merely to state that there is no evidence of the statute of an In order to frauds. Ellis’s, any injury to Uhlmann as result contention, swer this point first claims, any and there is no evidence of ed out that a not a constructive trust is morally reprehensible of part intent on the legal relationship, equitable it but is an rem anything edy nor was there unconsciona- express-parol legal whereas an trust is a claims, about such relationship. ble whether true or false. Hernandez, In Murillo v. su pra, we answered a similar contention: argues further even under jurisdiction findings

“The law is settled in this proper court’s this case is not a express impose that an based an in which to trust a constructive trust promise modifying oral a the agreement of terms entered into may fraud, good retain the not in conscience faith, precluding an actual good thus interest, equity him converts beneficial constructive and there is no evidence of a * * * equity into A a court of trustee. fraud. decreeing bound trust is constructive facts and is abundant with The record unyielding equity of no formula. The Ellis, due to his testimony which show shape measure perilous position, had disclosed all financial Cardozo, J., Beatty v. of C. relief.’ defendants, and financial interests Co., Guggenheim Exploration 225 N.Y. certainly they well as aware 380, 378, 380, 122 N.E. 381.” equal bargain an foot- position to on in no 58, at 410 P.2d at 665 100 Ariz. the aforemen- ing of Felder, Ariz. of Condos v. case negotiations. record further tioned The 366, prob- P.2d placed great that Ellis confidence shows jus- determining lem of whether the facts defendants, their admission own fraud, implied tified finding of fact but did were also aware of this in that adopted language Bogert case him that nothing which have warned Trustees, Ed., on Trusts and Vol. until unjustified Uhl- this confidence was quoted following: Part Sec. conveyance pre- mann refused to make “ there 'But are other there cases where agreed upon. viously just great intimacy, of is disclosure previous holdings In accordance with secrets, power, superi- intrusting of subject, in the case of Markel recent ority position repre- Co., Title v. Phoenix & Trust spe- sentative, where has no but law P.2d this court said: position cial for the designation expresses “A constructive idea trust parties. ex- It cannot be called trust or equitable a defendant under an is yet ecutorship, and it in its is so similar give duty complainant the benefit operation creation and that it should have ” property wrongful holding A held. like 92 Ariz. results.’ injustice begs type relief whether at 308 regardless old or is new ac- whether evidentiary as the The such rules tual fraud exists. parol-evidence rule statute of frauds and ‘“ * * * where actual fraud does not lightly, under should not taken acquisition exist case, plaintiff facts of where the instant constructive trust will arise whenever superi those forced deal with who inequitable circumstances make ority justifiably places position, and he should retained persons, equity inter his trust in those will * * * legal one who holds the title. impose trust on vene and a constructive forms and these varieties of trusts concerned, where the holder practically prin- without limit and the re good legal conscience title ciple applied necessary it is wherever tain this interest. justice.’ obtaining complete for the not eroneous in judgment Lewis, Roca, Linder Scoville and interest granted plaintiff a one-half Beauchamp, 118, 123, 124, him opposed granting $20,000 as defendant Trusts, Bogert “See Second § a one-half agreement was for tends. The edition. $20,000. property and not for “ ‘* ** property A increased value constructive trust is the thereof, and equitable owners through formula benefit to conscience one- equitable owner equity plaintiff being an expression. finds prop- When erty property is entitled to been half of the has in such circum- that the legal stances creased value. holder of the title Uhlmann also that —-in plaintiff contends accord- denies that any has interest ” * * * ance therein; with his motion and affidavit filed after knowledge holding trial and of the The case then went to trial on the 14th question the court —the 'day of December and on the 16th wife, property, and his Billie was submitted court for consideration. Uhlmann, party; indispensable was an On October 13, by court minute therefore, upon his motion to these dismiss entry set forth findings certain and con- grounds granted. been should have clusions, and upon ordered that presenta- disposition question requires of this con- tion approval and findings of fact pleadings sideration of the the facts and and law, judgment conclusions of would be developed during the The El- trial. entered accordance Proposed therewith. lises, facts, pray alleging after relief findings of fact an’d conclusions of law as follows: and by plaintiff were submitted “ accordance with the court’s order. After * * * adjudge and [T]hat objections by defendant, were filed premises decree that here- those certain March defendant Ernest Uhlmann are held trust inabove described filed his motion to dismiss grounds on the subject plaintiff’s defendant Uhlman that Billie Uhlmann indispensable was an rights consisting of and interest therein party. This was the first time he had therein, an undivided interest one-half claimed the property question was com- subject, however, right de- munity property. While the and the escrow upon fendant sale thereof Uhlman deeds which were introduced in evidence agreed by plaintiff defendant and contained the names of both Ernest Uhl- Uhlman, sales to receive out of first mann, Uhlmann, and wife, his $20,000.00, proceeds thereof sum of case went upon to trial the allegation that is the defendant which said sum amount defendant Uhlmann claimed title in fee Uhlman or to advance advanced simple. basis, As a question turns rights King’s order to accede to said interpretation 33-452, § premises in said and under aforesaid reads as follows: equit- contract, plaintiff and that conveyance “A or incumbrance of com- right able and beneficial owner of said munity property is not valid unless exe- premises, and and said and cuted acknowledged by both husband Gaffey no defendants and Piel have wife, except unpatented mining claims declaratory therein, terest and for a may conveyed or incumbered

judgment decreeing and interest spouse having right the title or aforesaid hereto and to possession spouse without other premises the aforesaid and under and to joining conveyance or incum- incurred, deeds, costs herein brance.” 11 A.R.S. 33-452 § further relief as such other and It legislature is evident that proper.” the court seem prevent intended to a husband from con Uhlmann, answer, gen- Defendant veying or encumbering community property erally allegations; denied how- most unless it acknowledged was executed and ever, dealings he had had admitted some wife, object apparent of which is negotiations plaintiff without prevent —to "defrauding husband from same, stating that he the nature of the the wife. Roy purchased H. plaintiff contention of King, premises Uhlmanns hold the as constructive “ * * * that he to be Ellis; admits claims trustees for the benefit of that title fee premises the entire property passed owner of recognize and admits that he does not structive trust and was not a

147 community. Boardman, community property; Munger v. 53 or encumbrance of 536; 271, Ariz. 88 P.2d Intermountain for com- obtained Allen, Realty 228, subject Co. 60 Idaho P.2d munity to the constructive v. 90 704, held, 122 previously A.L.R. 647. trust. Shreeve We 35, 641, that Greer, v. 173 Morgan v. Tire Rubber Firestone & into right enter the husband has the al., 976, et 68 201 Co. Idaho community a contract on behalf purchase husband had a contract to made purchase property, for realty community. part certain for the As join in necessary for the is not wife to contract, consideration for the signing contract. We said: property husband to lease back the “ * * * the seller. The Heap, com seller breached con- head of his tract, claiming it munity, lawfully to act for was void because wife entitled sign any contract Section to encumber com- on behalf of and bind it. munity 63-303, A.C.A.1939; La and the an realty lease was such en- La Tourette v. cumbrance. The Tourette, Ann. court held: 137 P. Moser, Ariz. Cas.1915B, Bristol v. 31-913, I.C.A., prior “Section to 1945 I, 113— Vol. sections amendment, effective when the transac- 116, Principles Community Property made, provided: tion was “ (de Funiak). Any contract he made look community prop- ‘Husband’s control of ing purchase toward the of the real estate erty.- management husband has —The presumably a contract made for community control of ” * * * community and its benefit. except the earnings of the wife for Ariz. at 173 P.2d at 645 personal services and prof- the rents and separate its of her But estate. he can thereby clearly This court held sell, convey or encumber the com- signature of the wife not neces munity real estate join unless the wife sary community agreement buy him executing with acknowledging property. In the instant case the husband or convey- deed other instrument of right pur had an negotiate absolute ance, by which sold, the real estate is property chase community with funds veyed or encumbered.’ wife, without approval of his in which validly acquired event he interest which provision the husband’s “The relative to in the property community-property was a makes him management and control Greer, supra. interest. Shreeve The marital com agent and trustee for the

question community then is —what did Kohny Dunbar, Idaho munity. acquire negotiations of the husband ? L.R.A.N.S., 258, 121 P. manager Ann.Cas.1913D, 492. As such generally courts The hold funds, community may purchase apply similar statutes do not to invalidate upon acquisition is com property which purchase agreements by the husband made 31-907, munity property under I.C. Sec. behalf of which result A. acquisition of encumbered join unnecessary wife “It is test whether the is encum of an in the execution with her husband acquisition. bered at the time or before its real instrument necessary party is not a if acquired. Intermountain property is encumbrance is made before or at the time Allen, Realty Idaho Co. acquisition. unnecessary It is 2d A.L.R. 647. join wife to with her in the exe husband cution of an instrument est in real acquired, which an inter and the “ * % * ^[*] ‡ husband, manager # J{i # for, pur- community, can manager agent pur agent or husband —as or —can property subject real which is chase to liens chase 148

liens, exceptions. 690, reservations and See National Bank 41 (1925), Idaho 241 P. Boardman, 271, 1023, 88 Munger 53 Ariz. Grocery v. and Gerken v. Davidson 536, page dealings Company at 538. Such 315, (1931), Idaho P. 50 296 prohibited by are the statute. cases, not Washington These like the only acquires cases, after once are mechanics’ foreclosure of 31-913, upon I. placed title that cannot under Sec. property by liens the hus- C.A., supra, convey or encumber acquired by band after was com- community property munity, and, cases, without wife Washington like the joining applicable with him the execution distinguishable not and are acknowledgment of the instrument of from the case bar. conveyance or encumbrance. While However, in the even of a fore- rule is well settled that character of closure aof mechanics’ or materialmen’s community property time fixed at the lien, the authorities are divided. ma- acquisition of its and the wife’s interest jority rule is that the not have wife does (Pendleton Brown, vests at that time v. to be made party to the suit. In Yearout 604, 213; 221 P. McDonald v. v. Pipe Corporation, American & 74 Steel Lambert, 78, v. 27, 43 N.M. 85 P.2d 120 139, Cal.App.2d 174, which was 250; Estate, A.L.R. In re Woodburn’s against a foreclosure of a lien materialmen’s 141, 190 1138), Wash. 66 it is not the husband for debt the hus- fixed, so nor in does the wife have band had the com- contracted behalf of therein, acquisi terest until the time of munity premises, for material used tion.” 201 P.2d at 980. majority setting court —in forth the rule —held: states his brief “The indispensable party is an in an action Bryan, Cal. 206 Cutting v. “The case seeking impose a lien on question involved 274 P. property.” difficulty with this state- confronting us the one quite similar to counsel, ment case, in the instant is that made was not the wife here where plaintiff seeking impose a lien on was, in action her party, but husband community property. The whole case rests It was community property. involving upon a constructive trust which the court there said: found existed in favor of Ellis at the time of “ plaintiff was ‘The fact the transaction. support Uhlmann seeks to action party expressly made position by Washington citing cases— been commenced theretofore which had namely: Bridge Company Northwest federal prosecuted being and was Tacoma Shipbuilding Company, 36 Wash. not, opinion, militate in our court does 996; 78 P. Nolan, Powell v. 27 Wash. foregoing against application of 67 389; P. 68 P. Peterson v. forth set principle, for the reasons Dillon, 397; 27 Wash. P. Sagmeister cited, above certain the cases Foss, 744; Wash. P. Littell husband the additional reason Smythe & Mfg. Miller, Company v. 3 Wash. party principal plaintiff was the 480, 28 1035; P. Snoke, Collins v. 9 Wash. action, and such defendant in said 566, 38 P. 161. community interest representing the All of these cases involve the in said foreclosure also of his wife of himself and .of mechanics’ liens. These liens placed and that as to such on the property acquired by privity after title plaintiff herein the community, husband, represented which is a different fact and was case, though situation from the fully one instant said him as action n applicable party therefore expressly are-not she been made a are clearly distinguishable. McKay Community Property, He likewise thereto. 882; cites some Ed.) Cal.Juris., p. Idaho (2d cases — Civils v. First § Clark, Estate of Cal. involved Lewis, C.C., 622; Lichty purchase 63 F. part not a on the Cir., Id., 77 F. C.C.A. Uhlmann. 59].’ [23 j “Mr. Associate Preston wrote Justice agreed part the as Ulhmann concurring opinion Cutting in the case would that a one-half interest transaction generally and referred to the fact therefore, title to Ellis; the go when to ‘Washington the courts have declared instantaneously it passed the was property necessary in party the wife a action trust, prop the subject this the same as to respecting community property, the real Rub erty Tire Morgan in v. Firestone & judgment against and that a the husband instantaneously al., supra, ber Co. et was void,’ alone is and concluded those cases reasoning subject lease. The California, controlling were not thus only the Morgan not shows showing Washington rule was acquired property, Uhlmanns one-half called to the attention of the Justices. Ellis’s which was to a trust significant It refused to favor, any argu disposes further follow it and did not consider it of suf special had ments that Billie Uhlmann ficient importance to discuss it rights concerning property majority opinion. only governs 33-452. This statute A.R.S. § question “The same was realty before conveyance or encumbrance of Superior Court, Secondo v. 105 Cal. community. The it vests in one- after App. 179, where belonging half Ellis never vested interest was said: community in the because a con “ time of the structive trust arose at interest, the community ‘As her the Uhlmanns. husband, who, privity with her fully involving property, actions declaratory trust is A constructive represents interests, both their and she rights at the time and interests necessary Cutting party is not a thereto. transaction, questioned it reverts Bryan, 206 Cal. 274 P. the time of the transaction back to Cor.Jur., Wife, 1270, p. Husband and § gave See to the constructive trust. rise 160.’ Connor, Ariz. 6 at Smith v. hold that rule we “Under this Trustees, Bogert, 2d Trusts & necessary not a Yearout was Anna V. Ed., From the time of p. 11. § foreclose party the action to in Uhlmanns held a one-half community lien materialman’s Ellis. in the in trust terest there represented she was as Therefore, Billie Ernest Uhlmann were judgment Therefore the her husband. community of their one-half interest owners her binding lien foreclosing the was property, proper but not of whole can and neither she nor husband ty. negotiated pur Ernest Uhlmann successfully this action.” maintain he, manager of the com chase which as at 176 do, munity, perfect right and his had a case, manager community had com- actions as were In the instant husband community binding upon plete both himself his wife. control of Morgan Tire right v. Firestone purchase had a accord with Co., supra, if, stated in the handling this & Rubber as limitation in the trial, community proper community right motion after it was that of his was ty, community she interest question encumber the same. The to have community one-half which the court found encumbering property is not passed never to the Uhlmanns. Se case. The sole involved in instant held community in the one-half pertains ac- question involved what community n held in manager trust was quired acquisition justice trust from date of its which will do between community prop- actually court, it never before the therefore became without acting erty. juriously affecting rights Since Uhlmann of others ” manager brought for the his wife into the action.’ necessary 134, 333 indispensable neither nor P.2d at 297 party represent needed to The facts instant case show fully. The community bound injuriously affect manager. acts rights. Uhlmann’s Her derivative that she took a one-half interest principle is a well-established property rights whatever ac- Uhlmann of law that held in trust is not quired as a result of the As transaction. community property. Rohrmoser, v. Dreher previously stated, a relates constructive trust 196, Cal.App.2d 285; 134 285 P.2d Mell transaction, back the date of the and there Shrader, 55, 758; v. 33 Pappas N.M. P. 263 way is no Billie have ac- Uhlmann could Taylor, 22, v. 138 Wash. 244 P. 390. In quired any claim to Ellis’s one-half interest Mapel Starriett, 1, 726, 28 205 P. N.M. superior would because to Ellis’s the court said: all interests were fixed at the time of “ * * * * * * The district court found transaction. Therefore it that be- follows that Starriett resulting of a trustee rights acquired by cause her her those trust. being case, Such neither he nor husband, injurious there can be no effect as wife, his community, any nor the had being result of her not specifically joined prop- beneficial estate or interest party to this action. erty, and his signature wife’s was not concerning other contention Uhlmann’s necessary or transfer Billie indispensability of issue * * *” it.of 205 P. at 727 upon a claim Uhlmann based judg- jurisdiction render court lacked Uhlmann’s next contention con Billie Uhlmann against A. and ment Ernest cerning the indispensable-party issue is Billie because concerning the tract of land upon based the fact that Billie awas named party the action. was not Uhlmann grantee in the King-Uhlmann transaction, against in the instant case is judgment and she was a titleholder of record. community. There error committed was no nowhere contended that Billie Uhlmann mention- name was Billie Uhlmann’s any could have in this other not used judgment, as her name is ed in this than those by the husband. As to merely to individually, to her to refer community wife, interest of the it is in very community. By na- identify the privity husband, with that and in this trust, the facts constructive ture aof action which determined what that interest acquisition com- of this of the was, the fully husband represented both his through the day munity its court community interests, her role possible representation. It is not husband’s aás member of the community she is not an Billie prior addition how foresee indispensable party She thereto. was en could party defendant as a named titled to a community interest whatever issues, or possibly altered acquired. interest he In Superior Bolin therefrom, determin- subtracted added or Court, 131, 85 Ariz. this court litigation, insofar as ing of this the outcome made the following statements, quoting from a con- holding the existence of judgment Holtzhoff, Barron & Federal Practice and trust is concerned. structive Procedure, Vol. pp. Sec. 58 and 59: ‘“ * * * took no show indispensability The facts test of prop- acquiring part therefore is whether person’s the absent Uhlmann. erty. all handled Ernest interest in It was controversy is such that no owner “to be a fee judgment alleged final He his answer or decree can be entered 426; 15 Ariz. and inde premises.” At the conclusion the entire pendent (in the case under wishes took the trial advisement. On October minute trust on however, plaintiff clusions of advanced favor of ed signing ingly. tions findings judgment. Defendants the ty property of miss law, reason judgment. the order of on March entry motion As the court did Ellis’s one-half plaintiff a lien in the sum of findings of law previously fact, proposed findings, defendant undivided of its providing of Ernest the presentation, approval, and Ernest A. Uhlmann conclusions George findings not have property court, stated, in Uhlmann, fact and conclusions one-half interest be entered submitted upon Uhlmann jurisdiction Ellis submitted a constructive fact $10,000 upon conclusions, preserving, the compliance law, and order- communi- it made and con- accord- ground to dis- objec- sums for Valley Bank, ject ment of community property interests are con absence First 26 Ariz. cerned, Tex.Civ.App., 230 ters of which wife. Atkins v. 641. husband is Shreeve v. Wife § for such charged Am.Jur., S.W.2d Page Nat. 259 P.2d she is bound 512, p. 1091. of fraud community with such transactions purpose 840 Bank of Mesa v. the Greer, Husband and and has notice of ; agent the P. 556. So far but he is 41 at 560 upon her) is not S.W. Dodds, cf. Loveland husband C.J.S. ^[*] of debts. the ^[*] Wife, agent for Tex.Civ.App., Husband *” transactions. the husband he can sub wife, has notice. Reeves, Cosper v. When agent all mat Section as her she Ingle, Ariz. pay Uhlmann, wife, in Billie a shift his case, Under facts of position taken Ernest Uhlmann in acquired an only Uhlmann could have simple, he was owner in fee and was through agent property her terest long knowledge made after he had of full prin Uhlmann. is a well-settled Ernest the holding of the court. property ac ciple of law in state quired by spouses either or both of the representa Under either of these presumed com during coverture is tions, jurisdiction the court had to enter munity property. regardless is true This judgment, holding that Ellis had a construc ti spouse’s appears of name which tive the lien trust Evans, Ariz. 288 P. tle. Evans v. $10,000. was, property If the as claimed 775; Smith, v. Ariz. 2d Smith trial, throughout sep 214; Porter, 67 P.2d Porter v. Ariz. ju property arate have the court would 132; Blaine, Blaine 63 Ariz. 195 P.2d v. judgment. risdiction enter the On Goesling, v. Greer hand, community property, other if it were P.2d Lovin v. Wood Uhlmann, alleged in motion Ernest ward, forth 105,40 set 45 Ariz. As jurisdiction judg enter likewise had Bruce, supra, Billie Morgan v. against community. ment all the matters had notice of Bruce, In Morgan the case of husband notice. we held: n Boardman, supra, in Munger problem presented “We thus agent the com- acting the wife as an determining of defendant mortgage on munity promising pay a assignment under her Bruce purchased com- by her for the husband. The husband has exclusive munity, we said: community agent trol and is the “It will do defendant Charles community management Tourette, Munger say. participate he did not personalty, La La Tourette v. negotiations concerning property. of the lower court. Whatever His community’s right wife was or the acquired she agent buying every and in by the agent. acts of her step thereafter, and all her acts and ad- Ernest Uhlmann. She is bound his acts. representations agree- missions and Munger Boardman, supra. acts, admissions, ments repre- were the For foregoing reasons, jitdgment agreements sentations and the com- of the lower court is affirmed. munity. law, spouse may “Under neither en- UDALL, J., V. C. ANTHONY T.. cumber, by mortgage or lease or other- DEDDENS, Superior Judge, Court concur. wise, dispose or sell or E. LOCKWOOD LORNA NOTE: Justice realty without the consent of the other. disqualification having announced necessary join It is such DEDDENS,. T. ANTHONY Honorable affecting realty the com- County,, Judge Superior Court Cochise munity. laboring Defendant seems to be participate the determina was called agent under the belief that appeal. tion of (Edna Munger), A. in seek- ing and securing from the owners of BERNSTEIN, (dissenting). Justice mortgage an extension of time for dis- majority’s disagree I with the it, foreclosing thereby encumbered position case. of the instant property. This in fact so or gave mortgage. placed necessary law. forth She no She to set At the outset this, description posture no encumbrance a short Ellis, mortgage property the was when the complaint, plaintiff, on the case. In his community it, bought and all the com- land to- conveyed King had alleged that munity did ask time in payment was to for which the in consideration of pay obligation granted and it was that Uhl- promise $20,000, oral and the to them that condition as- reconvey an undivided one-half mann would payment sume the Ellis; of the note and mort- that Uhl- property in interest gage. property to- reconvey the mann refused to Ellis, that con- Ellis and therefore asked ‡ ‡ ‡ ‡ ifc sk one-half imposed structive " trust * * * The husband not claim equitable- interest he claimed an repudiate the benefits of the contract and that interest. answer denied Uhlmann’s ” * * * 277, the burdens. 53 Ariz. at Al- property. Ellis had in the interest 280, 538, 88 P.2d at 539 though both named deed from case, Under the facts of the instant wife, Billie, as- Ernest Uhlmann and Billie in- Uhlmann’s could not be grantees, join nevertheless Ellis failed juriously being party affected party Uhlmann as a defendant. property sep- action. If were court, jury, trial found sitting without a Uhlmann, arate property of Ernest al- as imposed trust Ellis a constructive leged answer, in his she would not property. on a one-half interest in juriously being joined affected aas part The majority of this court holds party. If property community that Billie Uhlmann property, then represented by she was “ * * * agent Bruce, never Morgan Ernest Uhlmann. v. supra. interest in trust for in the one-half held most she could claim that be an for this held in trust property sepa- interest as her from acquisition rate This date its is not an issue therefore However, case. community property never became an undivided one-half in- terest (Emphasis added.) remains Uhlmanns under

153 referee entitled to that since “Since the ^Furthermore, majority holds n Raymond held the naked clude that trust a constructive imposition of ** * Harry as legal held for title trustee property one-half property interest any com- there was no substantial precludes Ellis benefit of (cid:127)the the com- vesting Raymond could become -munity property interest unnecessary Bertha munity property Raymond and Uhlmanns, it therefore n agreement.” under their transmutation a defendant. join Billie added.) (Emphasis 252 P.2d at 984. my opinion Billie agree. I do not Obviously that court holds California party, and indispensible 'Uhlmann was legal title in ownership mere form of n consequently fatal. join her was failure to prop- property render that is insufficient to 131, Court, 333 Superior Bolin v. erty community. part Rather Luke, Ariz. v. 18 P.2d Howard ben- acquire equitable or defect Let examine the 164 P. 439. us ownership eficial in order reasoning. majority’s obtain an interest. Crucial to their decision is statement However, often stated that our we have n that a constructive trust fixes title community property similar to law is most acquisition. time at the of its Washington, state of majority recognize fails to Yet the consistently followed reason we Healy merely legal v. fiction. See Kunz, Washington cases. Donn v. Revenue, 345 U.S. Commissioner of Internal Valley Cosper Ariz. v. 1007. 73 S.Ct. 97 L.Ed. Bank, Indeed, justice, majority, equity in the name of Conley Moe, Wash.2d n employs to an legal fiction as means 1089, Washington A.L.R. inequitable reprehensible end. stated I better rule. what believe to be the acquired subject premise (cid:127)their * * * in this community proper “It well settled to a trust never becomes jurisdiction ty, Cal.App citing Rohrmoser, Dreher the status resulting fixed money personal, (purchase .2d whether real or becomes 285 P.2d 285 ; acquisi- Shrader, purchase st) Mell 33 N.M. of the date of its or tru tion, 55, changed (express trust); Pappas v. and fixed unless 263 P. 758 remains so 22, by deed, law, by the Taylor, (construc by process or 138 P. due of Wash. 244 390 ; Mapel working estoppel. In fraud) tive of form trust based on actual some of Estate, Starriett, (purchase Deschamps’ Re 28 205 726 77 Wash. N.M. P. n money Estate, 1009; relied resulting trust). These cases 137 P. In re Woodburn’s 1138; re majority in com 190 66 In the have one factor Wash. P.2d mon; Estate, P.2d express trusts Finch’s 198 Wash. 89 either deal with n or Mumm, 218; Wash., purchase money Binge resulting trusts in which [5 knowledge the clearly 446,] the Wash.2d P.2d 689. trustee has 105 acquisition time of that he a trustee. is specific foregoing “The rule enunci- proper Using premise the that of the status ated in the cited and followed cases ty its becomes as the date of fixed particularly other cases from this court -acquisition majority errone the reaches the property, legal the title the refers to to need ous conclusion that Billie Uhlmann directly interests or and not to such joined party not be defendant. as a equitable consider- as are founded the the basis for result the cases cited cases, quite our majority ations. In a number of language can the be found in rules and follow the which announce the In re California court case of above, that the Estate, the is conceded Raphael’s Cal.App.2d stated rule subject certain trust). legal may be to title (purchase money resulting P.2d 979 spouses acknowledge cir- execute and the equities, according the fact's and both conveyance, particular case.” it obvious instrument is cumstances joined partners be (Emphasis both marital must added.) compel conveyance a suit Washington looks to whether court this property. majority Because title, if it acquires legal community com- relies on the conclusion does, property presumed to be com- is only munity property has an interest munity property. equitable acquired which it has rather than specifically In instant the deed legal lead title result well Billie named Uhlmann and his wife Ernest 33-452. emasculation A.R.S. § and, acquired grantees property since all majority’s is rationale basis during presumed coverture is splitting concept of title into- a joined be compartments; equitable, two one other party. The record is clear that Uhlmann legal. Unfortunately, analysis leads $20,000 price such an paid purchase for the example, a. to an For once certainly unwise result. property therefore, not a purchase realty executed addition, may contract is noted that strawman. be oper equitable doctrine of conversion expressly the trial court found legal merely ates agreement so seller retains between made in buyer acquires equitable title title. and the good faith. Tang, See 100 Ariz. Smith v. point pose At a necessary 697; Beckett, Lebrecht Ariz. hypothetical analyze case in order Haynes, Strahan v. majority’s acquired property conclusion that Greer, Shreeve v. no in- contractive trust vests Certainly the wife’s community. terest can best be This the- dispensibility depend whether cannot illustrated what an an- I believe to be conveyed. property being or alogous dealing situation when suit majority opinion its To follow to compel conveyance Let logical would mean where conclusion us promise assume that the evidence of the partners decide- marital to convey prop- one-half interest parcel sell real the wife- erty to convincing. Eillis clear acknowledge the need execute Further let us assume purchase contract. For once sale always community property been the signed equitable title no- contract is would of the Uhlmanns. Would community, longer and in be joined have to party indispensible as an subsequent compel suit to to enforce Ellis’ claim to the one-half joinder spouses both deed interest in ? however, unnecessary. result, Such A.R.S. 33-452 a bearing has direct § clearly light the mandate in of unwarranted the resolution of provides this issue. in 33-452, requires the A.R.S. § part: acknowledge the con- wife to execute and “A conveyance veyance. by a conveyance or incumbrance com- A is manifested munity property is valid unless not deed. [real] executed and acknowledged by both hus- purpose 33-452 of A.R.S. § ” * * * band (Emphasis and wife states, merely, majority prevent to as added.) wife, defrauding the husband

A equity suit compel delivery equality in recognize but to also to objective compulsion deed rights disposition has com- as its wife’s in the parties required convey. those munity property. who to real As we said Shaw Since Greer, v. A.R.S. 33-452 invalidates a con- 194 P.2d § veyance community unless 433. property business, operated and com- was statutes real estate

“Our married woman independent property adopted business of her husband in munity laws were sole, be- establishing equality manner of feme an purpose of received community foreclosing extension of time for mort- and wife. Our tween husband honesty; gage property property purchased which she had law conceived in was policy give mortgage. The record in its to to wife community equal dignity with case revealed sufficient facts to war- an marital equal rant the conclusion that the wife was her husband and to make an agent community. gains.” (Em- husband’s for the Yet in factor the matrimonial phasis completely the instant the record added.) case indicating devoid a scintilla of evidence rights wife’s in the marital any that Ernest Uhlmann had authorization nullity would be reduced to a a suit if agent dealing to act as Billie Uhlmann’s compel to aof to real deed event, any with the In property rights could foreclose her Boardman, Munger supra, support v. cannot property opportunity without an defend majority’s conclusion Billie Uhl- her rights. If the wife defense has a valid joined party, mann need as for in not be to the enforcement of the contract the Munger joined spouses both convey, and she joined need not be defendant. suit, certainly she bring will not be able to Finally, majority her defense to the concludes attention of the court. jurisdiction judg- trial enter court had In majority’s addition to the defect ordering ment Billie Uhlmann Ernest and title, legal equitable distinction between convey the one-half to Ellis. is their recognize legal failure to a basic They hold that committed no error was concept. In the instant case deed from judgment because the to refer used expressly to Uhlmann Uhl named merely individually, to Billie Uhlmann wife, Billie, grantee. mann’s as a Where identify community. the trial How the wife is a grantee named she must be judgment against com- court can enter joined party as a before her munity majority when the states that can be affected. Oliver community property never became Oliver, 216 Ga. Luns S.E.2d completely comprehension. escapes my Witt, ford ; (Ky.) 309 S.W.2d 348 Dane For these I would reverse reasons Daniel, 23 Wash. To judgment of the trial for failure to court deprive Billie day of her join indispensible Billie Uhlmann as taking amounts to a without party. process due of law.1 Billie For without presence Uhlmann’s trial court was STRUCKMEYER, (dissenting). Justice jurisdiction without proceed judgment case. opinion, supe- my rior flagrantly court is for want of due void The majority Munger relies on v. Board process. man, conclude that Ernest agent Uhlmann, for the Although Ernest community in purchasing Uhlmann, grantee A. named consequently by by Uhlmann was bound deed However, Boardman, his veyed simple, Munger acts. fee named she was not supra, completely distinguishable party lawsuit, party never made by appear process, case before us. the evi did not that case service of clearly Notwithstanding, be- Munger dence the court established Mrs. action. Struckmeyer’s

1. dissent. See Justice low personal judgment against entered this one-half vested share her: Today a mere nominal interest. women relegated Arizona to a second-class ORDERED, “IT IS HEREBY AD- Ages. comparable only Middle status AND DECREED that de-

JUDGED fendants Ernest A. Uhlmann and Billie I must dissent. TJhlmann, wife, hold an undivided one- half premises interest in the hereinafter

described plaintiff the benefit of * * George Ellis sup- (Emphasis

plied.) That personam an in judgment 437 P.2d 948 against rendered one who has never been party Arizona, Appellee, litigation would seem so STATE obvious authority that citation of should be unnecessary. TATKENHORST, Appellant. James Herbert No. 1772.

“It principle is a of general applica- tion in Anglo-American jurisprudence Supreme Court of Arizona. that one is by judgment bound In Bane. personam in litigation in which he is not Feb. designated party as a or which he has not been party made service of process. Pennoyer Neff, 714,] Otto [5 95 U.S. 24 L.Ed. 1 Freeman on Judgments, 5th ed. 407. A § rendered in such circumstances is not entitled full faith and credit which the Constitution and statute of States, United R.S. 28 U.S.C. § 687, 28 § prescribe, U.S.C.A. § [cita- judicial

tions] action enforcing it against person or property party absent is not that process due the Fifth and Fourteenth Amendments

require. Lee, Hansberry v. [Citations.]” 40-41, U.S. 32 at 61 S.Ct. L.Ed. 132 A.L.R. 741. I concur with BERNSTEIN in Justice analysis reasoning erroneous

which the majority arrive at their ultimate cannot,

conclusion. I however, pass on

without expressing one further thought.

The most elemental considerations of fair

play require that person no lose his

without the opportunity heard. The assumption

court-conceived that a wife is represented husband, although husband in fact representa- disclaims such a

tion, works a virtual destruction of the con-

cept property as it is known

in Arizona. Its effect is to reduce the wife’s

Case Details

Case Name: King v. Uhlmann

Court Name: Arizona Supreme Court

Date Published: Feb 7, 1968

Citation: 437 P.2d 928

Docket Number: 7418, 7423

Court Abbreviation: Ariz.