100 P. 801 | Ariz. | 1909
Appellants were plaintiffs below. Most of tbe evidence offered by them was ruled out upon objection. We shall state such facts as are pertinent to tbe opinion to be rendered, without distinction between facts admitted by the pleadings or proved and those facts which are in the record only as set forth in offered testimony.
Lizzie B. Murphey is the owner of a building in Tucson. In January, 1907, W. E. Murphey subscribed to a written instrument, as agent of Lizzie Murphey, which purported to lease to the defendant Brown a portion of this building for a period of one year, commencing on February 1, 1907, at a rent payable monthly in advance, provided that if Brown should not notify Murphey to the contrary on or before October 31, 1907, the lease should be extended for a second, period of one year. The instrument was signed by Brown. It was not acknowledged by Brown or Murphey. The authority of Murphey to sign the instrument was not in writing. Brown entered possession pursuant to this instrument, and paid rent to and including the rent for the month of January, 1908, conducting therein a retail merchandising business. He did not give notice whereunder the lease should be terminated at the end of one year. Before the end of the month of January, 1908, Brown became insolvent, and made an assignment of all his property to defendant Sims for the benefit of his creditors. Sims sold Brown’s entire stock of merchandise, it being still on the demised premises, to defendant Friedman, and this sale was consummated before the expiration of the month of J an-uary, 1908. Friedman immediately entered into possession of the stock, and advertised to sell it at public sale at reduced
A variety of questions of law is presented for our determination. Without defining the relation of the several points to the assignment of error, we shall take them up seriatim.
1. The first question to be considered is: Does the statute which provides for a landlord’s lien contemplate that the lien shall attach for rent as it becomes due, or does the lien attach at the beginning of the term to secure the rent of the entire term ? The statute in question is paragraph 2695 of the Civil Code of 1901, the material part of which reads as follows: “ Every landlord shall have a lien on all the property of his tenant not exempt by law, placed upon or used on the leased premises until his rent shall be paid, and such landlord, his agent or attorney, may seize, for rent, any personal property of his tenant that may be found on the premises or in the county where such tenant shall reside, but no property of any other person, although the same may be found on the premises, shall be liable for seizure for rent due from such tenant, and in ease of failure of the tenant to allow the landlord, his agent
2. The next question to be considered is as to the admissibility in evidence of the written instrument offered as a lease. The statutes which must be considered in this connection are paragraphs 721, 725, and 732 of the title “Conveyances,” and paragraph 2696 of the title “Frauds and Fraudulent Conveyances. ’ ’ These paragraphs read as follows:
“721. (Section 1.) No estate of inheritance or freehold or for a term of more than one year, in lands and tenements, shall be conveyed from one to another unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, or by his agent thereunto authorized in writing. ’ ’
“725. (Sec. 5.) Every deed or conveyance of real estate must be signed by the grantor and must be duly acknowledged before some officer authorized to take acknowledgments, and properly certified to by him for registration.”
“732. (Sec. 12.) "When an instrument in writing, which was intended as a conveyance of real estate, or some interest therein, shall fail either in whole or in part, to take effect as a conveyance by virtue of the provisions of this title, the same shall, nevertheless, be valid and effectual as a contract upon which a conveyance may be enforced as far as the rules of law will permit.”
“2696. (Section 1.) No action shall be brought in any of the courts in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized: . . .. (4) Upon any contract for the sale of real estate or the lease thereof for a longer term than one year. ’ ’
It is contended by the appellee, and evidently was held by the trial court, that the instrument is not effective as a legal lease because it is not acknowledged, and because the agent who
It is equally clear that the. instrument is not a valid and effective lease by reason of the fact that it is for the term of more than one year, is subscribed by an agent of the disposing party, not thereunto authorized by writing, and furthermore, because it is not acknowledged. Lewis v. Herrera, 10 Ariz. 74, 85 Pac. 245. We have therefore an attempted lease which is
The legal consequence of this relation is that the instrument in question is not admissible as a legal lease, but is admissible as a valid contract to lease. Under the ancient and rigid rules whereunder the functions of courts of equity and courts of law were separated by an unbridged chasm, the predicate for legal relief from conditions arising out of the relations of these parties must first have been laid by the procuring of a legal conveyance of a leasehold interest by the aid of the decree of specific performance of a court of equity.
. 3. Under these conditions, may it be said with legal propriety that the relation of landlord and tenant existed between Murphey and Brown at the time of the purchase of the stock of merchandise by Friedman, and that, therefore, the stock was encumbered with a lien for the rent to become due for the remainder of the two years’ period1? From the conclusions just stated, the answer is inevitable that at law the relation of landlord and tenant did not exist; in equity, under the principle that that which ought to be done shall be regarded as done, the relation did exist. The results which follow from these two different aspects of the relation are very important. Where a lien enforceable at law has attached to property, the purchaser takes the property subject to the lien, irrespective of notice, except where notice, real or constructive, is made essential by registration laws or the statute whereunder the lien arises. It is equally true that, where a legal lien does not exist, a purchaser of property without notice of the existence of equities obtains the property as fully free from equitable claims as from liens at law. Nevertheless it is further true that, in behalf of one who is equitably entitled to a lien, equity
4. This brings us to the consideration of the question of remedy. Murphey has neither obtained nor sought specific performance to crystallize his equitable relation of landlord and tenant into the legal relation, yet he seeks here for a decree adjudicating the existence of a lien upon the stock and for an injunction to restrain its removal by Friedman. We do not have separate courts of law and equity; we do not have even separate law and equity sides of the same court. Our courts, in considering complaints, act under the provisions of paragraph 1289 of the Civil Code of 1901, which reads as follows: “1289. (Sec. 80.) The complaint shall set forth clearly the names of the parties, a concise statement of the cause of action, without any distinction between suits at law and in equity, and shall also state the nature of the relief which he demands. ” It is manifest that here are. brought before the court the interested party, and all of the facts upon which relief in any form may be had by the plaintiff. We can conceive of no reason why the court should say that the plaintiff must first obtain specific performance and then seek to establish his lien, nor even why he should seek specific performance in this suit to establish a lien. As against Friedman, if Friedman is without notice of Murphey’s equities, specific performance would be unavailing; for the inception of the legal relation of landlord and tenant cannot be made retroactive so as to make the landlord’s lien take precedence over the rights acquired by an innocent purchaser. Reid v. Kleyenstauber, 7 Ariz. 58, 60 Pac. 879. Such right as Murphey may have against the stock of merchandise must be predicated upon the facts as they existed
5. The appellee Friedman has presented cross-assignments of error. It is unnecessary to determine whether as a matter of right he may have cross-assignments considered, except in so far as they fundamentally attack the maintenance of plaintiff’s action. Such cross-assignments are maintainable. Clark v. Liberty Co., 11 Ariz. 322, 94 Pac. 1134; United States v. Meade, 9 Ariz. 209, 80 Pac. 326; Arizona etc. Co. v. Nevitt, 8 Ariz. 64, 68 Pac. 50. One of the assignments is upon the ruling of the trial court sustaining a demurrer to a special plea of the defendant that the court is without jurisdiction to entertain the action. It is appropriate, even if not mandatory, to consider the ruling of the court upon this demurrer, in order that, should the judgment of the trial court finally be against the appellee, it shall not be necessary for him to prosecute an appeal to determine this jurisdictional matter. The point devolves upon the following allegations of fact: That, immediately after Brown conveyed the stock in question to Friedman, a petition was filed in the district court of the second judicial district to have the defendant Brown declared a bankrupt; that thereafter that court adjudicated Brown a bankrupt, and that a trustee in bankruptcy was appointed; that thereafter the trustee confirmed the sale made by Sims, as assignee, to Friedman, pursuant to an order made by the referee in bankruptcy; and that Sims paid over to the trustee the purchase money paid by Friedman. Upon these facts the
6. After the trial court had ruled out the offered defective lease, the plaintiffs made an oral offer to prove by the witness upon the stand a- series of facts in support of the essential allegations of the complaint, which offer, upon Friedman’s objection, was rejected. Friedman now urges that, in various respects, the facts so offered are insufficient to support the relief sought, even were the instrument admitted and given full evidential value. We will not scrutinize the offer in the light of this contention. That evidence, without which plaintiffs could not possibly prevail, was ruled out. It would have been an imposition upon the trial court, to which it need not submit, should plaintiffs, after that ruling, attempt to prove all the remaining essentials to their case. In the emergency
By reason of the error in the rejection of the offered instrument, the judgment of the district court is reversed, and the cause is remanded for a new trial.