68 P. 553 | Ariz. | 1902
John W. Dougherty brought his action in the district court of Yavapai County against the appellants to quiet title to certain property, and alleged in his complaint that he was the owner in fee of the property (describing it), and was entitled to the possession thereof, and that the defendants wrongfully withheld the possession thereof from him; “that defendants, and each of them, claim an estate or interest in and to the above-described pieces and parcels of land and premises adverse to this plaintiff; that the said claim of the said defendants and each of them, is without any right whatsoever; that the said defendants have not, nor have any or either of them, any estate, right, title or interest whatever in said lands or premises, or any part thereof.” And plaintiff prayed that the defendants be required to set up their title or interest, and that plaintiff’s interest be quieted as against the same. Appellants, as defendants in the district court, answered, denying the allegations of the complaint, and, in a separate answer, set up title in themselves. They say that Charlotte A. Oliver is the wife of A. G. Oliver; that A. G. Oliver recovered a judgment for the sum of $8,537.40 against Samuel C. Miller and Mary F. Miller, with a decree foreclosing a mortgage on said property; that such proceedings were had under the judgment and decree that the said property was sold at sheriff’s sale, and A. G. Oliver bid it in, and received therefor a sheriff’s certificate of sale, which was recorded in the office of the county recorder; that after-
The principal contention of appellants is that the plaintiff did not show title to the property, inasmuch as no deed was issued by the sheriff to A. G. Oliver, but that Oliver only held a certificate of sale. The same question was raised by plea in abatement, which was overruled by the court, and which order is assigned as error, for the reason that the plaintiff, not having a legal title to said property, had no authority in law for maintaining his action herein.
The statute of Arizona provides: “An action to determine and quiet the title of real property may be brought by any one having or claiming an interest therein, whether in or out of possession of the same, against another who claims an estate or interest adverse to him.” Rev. Stats. 1887, par. 3132. That statute has received a construction by the United States supreme court in the case of Ely v. Railroad Co., 129 U. S. 291, 9 Sup. Ct. 293, 32 L. Ed. 688, and the complaint is drawn in conformity with such decision. In speaking of the statute, the supreme court says: “The manifest intent of the statute, as thus amended, is that any person owning real property, whether in possession or not, in which another person claims an adverse title or interest, may bring an action against him to determine the adverse claim, and to quiet the plaintiff’s title.” It is admitted that Oliver went into possession under his certificate of sale, and was in possession at the time of the commencement of this action; so the only question is whether evidence that plaintiff held only an equitable title, under the allegation that he was the owner in fee, is sufficient. There is no such variance between the pleadings and the evidence as would make it impossible for the plaintiff to recover
The appellants objected to the introduction of the certificate of sale issued by the sheriff to Ross, and particularly the assignment which was attached to the certificate of sale, by which Ross assigned all his right, title, and interest therein to the plaintiff, Dougherty, for the reason that no revenue stamp was attached, as provided by act of Congress of June 13, 1898. Such certificates of sale do not come within the statute; and the original certificate from the sheriff to the purchaser being an instrument which is not within the statute, and upon which no revenue stamp need be affixed, it must follow that an assignment of the instrument to another is also free from the duty. It is only where the original instrument is subject to the duty that assignments of the instrument are also subject to the duty. Thus, where a mortgage is required by the statute to be stamped, an assignment of the mortgage must also be stamped.
It is objected further by the appellants that plaintiff ought
These constitute the substantial assignments of error urged by the appellants, and, we seeing no error in the judgment or
Davis, J., and Doan, J., concur.