Byers v. Wik

818 P.2d 200, 169 Ariz. 215, 95 Ariz. Adv. Rep. 32, 1991 Ariz. App. LEXIS 228
CourtCourt of Appeals of Arizona
DecidedSeptember 10, 1991
DocketNo. 1 CA-CV 89-576
StatusPublished
Cited by5 cases

This text of 818 P.2d 200 (Byers v. Wik) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Byers v. Wik, 818 P.2d 200, 169 Ariz. 215, 95 Ariz. Adv. Rep. 32, 1991 Ariz. App. LEXIS 228 (Ark. Ct. App. 1991).

Opinion

OPINION

SHELLEY, Judge.

Appellants Robert W. Byers and the American Securities Investments Trust (the Trust) appeal from a judgment dismissing their complaint to quiet title to a parcel of real property in Maricopa County which appellees Martin and Paula Wik (the Wiks) purchased at an execution sale. This appeal presents the following issues: (1) whether real property transferred by a judgment debtor to a third party, subject to a judgment lien, may be levied upon in the hands of the third party and sold pursuant to A.R.S. § 12-1553; (2) whether a third party to whom a judgment debtor has transferred real property subject to a judgment lien has a due process right to actual [217]*217notice of a sheriffs sale of the property, where the third party’s identity and address are easily ascertainable from the public record; and (3) whether the Trust was required to tender to the Wiks the redemption price established by A.R.S. § 12-1281 et seq. as a condition precedent to bringing the instant action to quiet title to the real property.

FACTS AND PROCEDURE BELOW

The facts necessary to our decision are largely undisputed. On July 1, 1987, the former spouse of Charles M. Byers recovered a judgment against him. Pursuant to A.R.S. § 33-961 et seq., Ms. Byers’ judgment was recorded on July 7, 1987, in the Office of the County Recorder of Maricopa County.

Charles M. Byers owned a parcel of real property on North Cave Creek Road in' Phoenix. On August 1, 1987, he executed a document entitled “The Establishment of American Security Investments an Irrevocable Trust.” The trust document stated that Byers “hereby irrevocably transfer[s]” the property into the American Security Investments Trust. The document recited that the purpose of the Trust was to provide an income for Charles M. Byers’ three daughters. The document designated appellant Robert W. Byers, Charles M. Byers’ younger brother, as managing trustee. It further provided in pertinent part:

The duties of the Managing Trustee are to manage the property, collect funds as they are due, and to disburse the excess funds as they become available.
As long as no outright theft occurs, the Managing Trustee has no personal responsibility for the condition of the Trust.
Charles M. Byers will have the first option on leasing the premises involved in this Trust. The terms and conditions will be as approved by the Managing Trustee.

On August 11, 1987, Charles M. Byers executed a warranty deed conveying the Cave Creek Road property to “American Security Investments (a Trust).” The deed reflected the address of the grantee as 2712 64th PI. N., St. Petersburg, Fla. 33702. On September 2, 1987, this deed was recorded in the Office of the County Recorder of Maricopa County.

On June 28, 1988, the clerk of the superi- or court issued a writ of general execution in aid of Ms. Byers’ judgment against Charles M. Byers. Pursuant to the writ, on July 28, 1988, the Sheriff of Maricopa County levied on the property previously conveyed by Charles M. Byers to the Trust. In August of 1988, the sheriff published a “Sheriff’s Notice of Sale of Real Property on Execution” in four successive issues of the Arizona Business Gazette. The notice of sale stated that the property on which the sheriff had previously levied execution would be sold at public auction on September 1, 1988. No actual notice of the execution sale was provided to Charles M. Byers or to the Trust.

At the sheriff’s sale on September 1, 1988, appellees Martin and Paula Wik purchased the property for $90,500.00. This covered the full amount of the judgment with interest and costs, and left an overpayment of $2,836.07. A “Sheriff’s Certificate of Sale of Real Estate on Execution” was recorded in the Office of the Maricopa County Recorder on September 20, 1988. After expiration of the six month period of redemption, see A.R.S. § 12-1282(B), the Maricopa County Sheriff executed a sheriff’s deed conveying the property to the Wiks. The sheriff’s deed was recorded in the Office of the Maricopa County Recorder on March 31, 1989.

The Trust brought the instant quiet title action against the Wiks and the Maricopa County Sheriff on May 1, 1989. The complaint did not allege that the Trust had tendered any amount to the Wiks to redeem the property.

The Wiks moved to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. The trial court granted the motion to dismiss. The trial court stated in part as follows:

There is no allegation that the sheriff did not comply with A.R.S. § 12-1621(A).
[218]*218I have carefully considered all of the authorities presented by counsel and believe that pursuant to the reasoning of Cagle v. Carlson, 146 Ariz. 292, 705 P.2d 1343 (App.1985), cert. denied 476 U.S. 1108 [106 S.Ct. 1956, 90 L.Ed.2d 365] (1986), and because of the settlor-trustee and sibling relationship between Charles W. Byers [sic] and Robert W. Byers and further because the Court cannot hold that A.R.S. § 12-1621(A) is unconstitutional, Defendants’ Motion to Dismiss is GRANTED.

The trial court entered a formal judgment in accordance with its ruling on August 21, 1989. The Trust filed its notice of appeal on September 21,1989, one day late. The Trust later moved for a delayed appeal pursuant to Rule 60(c), Arizona Rules of Civil Procedure, and City of Phoenix v. Geyler, 144 Ariz. 323, 697 P.2d 1073 (1985). Appellees Wik did not oppose the motion. By minute entry of March 15, 1990, the trial court granted the motion. We have jurisdiction pursuant to A.R.S. § 12-2101(B).

EXECUTION UPON REAL PROPERTY PREVIOUSLY TRANSFERRED TO THIRD PARTY BY JUDGMENT DEBTOR AGAINST WHOM JUDGMENT LIEN HAS BEEN PERFECTED

We first consider the Trust’s contention that the sheriff’s execution sale could not have transferred ownership of the property to the Wiks. The Trust cites Freeman v. Wintroath Pumps-Division of Worthington Corp., 13 Ariz.App. 182, 475 P.2d 274 (1970), for the proposition that a judgment debtor has full power to transfer his land subject to the judgment lien. The Trust asserts that a judgment lien only gives the judgment creditor the right to levy on land actually owned by the judgment debtor. Because Charles M.

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Cite This Page — Counsel Stack

Bluebook (online)
818 P.2d 200, 169 Ariz. 215, 95 Ariz. Adv. Rep. 32, 1991 Ariz. App. LEXIS 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byers-v-wik-arizctapp-1991.