57 P. 605 | Ariz. | 1899
This was an action by the appellant to recover the possession of five certain lots in the city of Phcenix, and for the value of the rents and profits thereof. The complaint is in the usual form in ejectment cases. The defendants William A. Hancock and Lilly B. Hancock, husband and wife, answered, pleading “Not guilty,” and setting up the statute of limitations in bar of plaintiff’s right to recovery. Similar defenses were interposed by the defendant Thomas W. Pemberton, who, by way of cross-complaint, also pleaded his ownership and possession of said premises, and asked for affirmative relief as against the adverse claims of the plaintiff. Upon the trial in the court below, the plaintiff was adjudged to have no right, title, or interest in said property, and the defendant Pemberton was adjudged, to be the owner and entitled to the possession thereof. From this judgment of the district court the plaintiff prosecutes an appeal.
The record shows the material facts in the case to be substantially as follows: On February 27, 1886, the legal title to the premises in controversy was vested in William A. Hancock, the common source from which both the plaintiff and the defendant Pemberton deraign title. The said premises were inclosed as one tract, with a dwelling-house situated ■upon lots 14 and 15, and had been occupied by the defendants [William A. Hancock and Lilly B. Hancock as a homestead
Several propositions of error are assigned, but, as we view it, the case turns wholly upon the question of the validity and effect of the deed of William A. Hancock to Lilly B. Hancock, executed February 27, 1886. If by that conveyance there was effected a transfer of the legal title to this real estate, then the appellant, claiming solely under an execution. sale upon a judgment against William A. Hancock, must fail. Hence it is essential to a reversal that the appellant establish the invalidity of this conveyance. He attempts to do so, and upon three different grounds.
Again, it is urged that by act No. 68, Sessions Laws 1885, the common law was in force in this territory when the conveyance was made, and that at common law a deed between husband and wife was void. The enactment relied upon to
But it is finally asserted that the conveyance was in fraud of the rights of appellant as a creditor of William A. Hancock, and therefore void for this reason. The property was at the time the homsetead of the Hancocks. Such was the finding of the trial court, based upon ample evidence. The character of the homestead exemption, as defined by the statute then in force, was as follows: “The homestead, consisting of a quantity of land, together with the dwelling-house thereon and its appurtenances and the water-rights and privileges pertaining thereto, sufficient to irrigate the land, not
We conclude, therefore, that the deed from the husband vested in Lilly B. Hancock the title to the premises in controversy in this case, and that no interest passed to the appellant by virtue of the attempted execution and sale of said premises as the property of William A. Hancock. Our conclusion upon this point is decisive against the appellant, and renders it unnecessary to notice the other questions sought to be raised. The judgment of the district court is affirmed.
Sloan, J., and Doan, J., concur.
Street, C. J., did not sit in the hearing of this case.