Appendix — Cocke v. James Stewart Co.
Supreme Court brief1975
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. Supreme Cuurt, U. S. |
-. FILED
OCT 10 1975
MICHAEL RODAK, JR., CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1975
wo. 75-556 4
FRANCIS M. COCKE, Petitioner,
Ve
JAMES STEWART COMPANY, et al, Respondents.
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
(Six Volumes)
RICHARD L. THOMPSON
132 South Central Ave.
Suite 7
Phoenix, Arizona 85004
(602) 254-7331
Counsel for Petitioner
VOLUME I
Pages 1 -87
INDEX TO APPENDIX
Volume I
Pages 1-87
Page
Complaint, filed Jan. 14, 1974......... 1
List of exhibits to complaint.......... 53
Agreement (contract & escrow
instructions), Oct. 9, 1968.......... 54
Retyped fine print instructions.... 58
DE “El nteb 6600446006660 600600% 73
Legal description....... beeoeeccees 77
Trustee Banks' escrow instructions
See, Gd BP ee 660seeecosees aeeeeece 80
F. M. Cocke's deeds, Dec. 30, 1968..... 81
Volume II
Pages 88-172
F. M. Cocke's Notice of intent to
OCOMGREs Bs. Se BGP scwccecccecscccce 88
Escrow agent's Notice thereof to
rs Ms Ge BE ecticeccoccsvscs 90
Buyers’ letter of new demands,
received by escrow agent
ae Te Ds DebweenbeeeceeoeecScces: 91
Escrow agents' notice to sellers that
Buyer had complied, Mar. 10, 1969.... 95
Agreement between Buyers, Joan Cocke
and Transamerica that Buyers were
depositing additional funds to
Cie e- Gee Bia Bees oeccscciccecede 96
Buyers’ letter to Transamerica
demanding compliance by it, follow-
ing Buyers' deposit in early Jan.,
1973 of additional funds,
te Mi PiPienbeeesseeveccecocecscce OF
Summary Judgments in favor of
Transamerica, Nov. 10, 1970.......... 102
Judgnnent in favor of Joan H. Cocke,
a eh Me ERE TLE TCT TCT eee eee 106
Page
Buyers' Amended Proposed Findings
and Conclusions, July 26, 1972...... 110
Judgment in favor of Buyers,
ee ee. Se 116
Buyers' Application for writ of
Assistance, filed sept. 7, 1973..... 130
Order Granting Writ of Assistance,
entered Oct. 31, 1973......ccccccce. 146
Writ of Assistance, etc., entered
i Ce Meee eee 153
District Court's Memorandum and
. Order, Mar. 4, 1974..........c000e.. 157
; District Court's Judgment,
Mar. 4, 1974..... ee ey eT ee 163
) Judgment (order) of Ninth Circuit,
) Oct. 7, 1974....... ‘neces a ye 164
State Trial Court's Order Approving
j Account of Court-appointed Officer,
etc., entered Sept. 30, 1974........ 165
Volume III
Pages 173-280
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Cocke, June 23, 1969................ 179
| Deposition of Transamerica's
Escrow Officer, Henry Kavanaugh..... 228
Copies: F. M. Cocke's Deeds, de-
livered into escrow in early Jan.
1969; and mortgage releases signed
and delivered into escrow on
2. Se Seren Ai bhones 272, 276
iii
Page
Volume IV
Pages 281-394
F. M. Cocke's Request For Findings
And Conclusions, Jan. 17, 1972...... 281
Buyers' Amendment to their complaint
Of April 22, 1969, Jan. 27, 1972.... 290
F. M. Cocke's Motions To Strike
Buyers' Amendment To Complaint;
To Dismiss Buyers' Original
Complaint And All Amendments;
And For Judgment On the Plead-
ings, Dab. FV, BOURicactcchcsensawsss 296
; F. M. Cocke's Answer To Buyers'
; Amended Complaint, Feb. 22, 1972.... 333
F. M. Cocke's Additional Requests
For Findings and Conclusions,
Feb. 23, BG, WBccccecscecdeosecese S64, 98
: F. M. Cocke's Rejoinder, and his
Objections To Buyers' Proposed
! Pindings and Conclusions and
: Second Amended Judgment lodged
July 26, 1972, Aug. 1, 1972......... 347
Buyers' Reply to Objections to
| Proposed Findings, Aug. 2, 1972..... 367
F. M. Cocke's Motion To Vacate
F The Summary Judgments in favor
of Transamerica and Buyers,
; Ost. 10, S0veececestenbtousee ecccces 368
; Buyers' Response To Motion To
; Vacate, Oct. 12, 1972...... eocccccece 391
4 Transamerica's Response To Motion
To Vacate, Oct. 24, 1972......... eee 393
Volume V
Pages 395-500
F. M. Cocke's Reply To Buyers' and
Transamerica's Responses,
Nov. 7, 1972 ef © © oe eee ee ee ee ee ee *e ff 395
Appellant F. M. Cocke's Reply To
Buyers' Motion to Dismiss
MORCGLs MOE. 12, WTB. ccccccecéscces 401
Court of Appeals Order Dismissing
Appeal as to Buyers, as untimely,
rd DOV 6ded so 66060666666 6e66s% ec 0 406
Appellant F. M. Cocke's Reply to
Transamerica's Motion to dismiss
appeal, June 4, 1973.....cccccccseee 408
Appellant F. M. Cocke's Reply To
; Buyers’ Motion To Refer File Back
To Trial Court, Sept. 13, 1973...... 421
Appellant F. M. Cocke's Motion For
Findings of grounds upon which
his notice of appeal as to Buyers
was held to be untimely, Sept.
Bo BPemeecccocesecesescesscecececes 6996
. Buyers' Opposition to Cocke's Motion
for findings, Sept. 21, 1973........ 447
Court of Appeals Order denying Buyers'
Motion To Refer File and Granting
Transamerica's Motion To Dismiss
: Appeal, Oct. 2, 1973 (File returned
to trial court Oct. 30, 1973)....... 451
: F. M. Cocke's Motion To Set Aside
Order Granting Writ of Assistance,
Bawee MEP Be BOeScesccccseséecosece 6883
Amendment To Motion To Set Aside
Order Granting Writ, Nov. 13, 1973.. 457
Plaintiff Buyers' Response To Motion
To Set Aside Order Granting Writ,
se Bee Berecececes eccccesccccccccs 6 6§68
Transamerica's Response to Motion To
Set Aside Order Granting Writ,
es Gd SURebSeseveesedecceccecees 43
F. M. Cocke's Rejoinder To Replies
to his Motion to set aside trial
court's Order of Oct. 31, 1973
Granting Writ of Assistance; and
Motion For Findings and Conclu-
Gs De Be BeeMeceecseseccsecocee 3O68
F. M. Cocke's Notice To Sheriff con-
cerning Writ of Assistance,
delivered July 29, 1974............. 475
a
De ee eee n
i ey) ON ek cane a! KA
Pe
Letter from County Attorney's office
to Buyers' counsel requesting sub-
stantiation that condition con-
tained in Writ of Assistance had
been complied with, and a letter of
indemnity, dated Aug. 1, 1974.......
Account Of Court-Appointed Officer
(Title Insurance Co. of Minnesota);
Petition For Approval and Applica-
tion For Instructions, filed by
counsel for Buyers Aug. 7, 1974.....
Trial Court's Order To Show Cause
Why Minnesota Title's Petition
Should Not Be Granted, Aug 7, 1974..
F. M. Cocke's Response to Order to
Show Cause, ard Motion To Vacate
Order Granting Writ Of Assistance,
and Writ itself, Aug. 28, 1974......
Trial court's Order Approving Account
Of Court-Appointed Officer and
Petition For Approval and Applica-
tion For Instructions and For Dis-
tribution, Sept. 30, 1974
(See Volume II) ......ccccccee
F. M. Cocke's Notice Of Appeal,
ee PT ee Te eee Tee
Volume VI
Pages 501-604
Buyers' and Minnesota Title's Motion
To Dismiss Appeal and for sanctions,
dated Jan. 30, 1975, received
Pay De: BP nawe 6 Ons Ck eeebebns cece s
Appellant F. M. Cocke's Response to
Buyers’ and Minnesota Title's
Motion to dismiss, etc., Feb. 10, 1975
Transamerica's Motion To Dismiss
Appeal and Impose Sanctions, dated
Feb. 13, 1975, received Feb. 21, 1975
Page
481
483
490
492
165
497
501
513
531
a
eee eee
vi
Page
Court of Appeals' Order dismissing
appeal and imposing sanctions,
Ue BEb BOPOecebacddcdnsocccccsceccee 842
Appellant F. M. Cocke's Response to
Transamerica's Motion to dismiss
appeal, etc., Feb. 25, 1975......... 547
Excerpt from F. M. Cocke's Opening
Brief, Mar. 10, 1975. ..cccccccccccce $80
Appellant F. M. Cocke's Motion in
Court of Appeals For Rehearing on
Order dismissing appeal and impos-
ing sanctions, Mar. ll, 1975........ 552
Buyers' Objections to Motion For
Rehearing, Mar. 13, 1975............ 566
Transamerica's Response to Motion
For Rehearing, Mar. 17, 1975........ 569
Court of Appeals' Order Denying
F. M. Cocke's Motion For Rehearing,
MS OOP Bee Pee cccenseccccscecoccecee 8T2
Court of Appeals' letter of trans-
mittal of Record to Arizona Supreme
COMBE, AMG. 1, LTB. ciccccccccccecee 573
F. M. Cocke's Motion in Arizona
Supreme Court To Remand Petition
For Review to Court of Appeals,
for permission to enlarge the
record and to file a Petition
for Rehearing, Apr. 21, 1975........ 575
Buyers’ Memorandum In Opposition
to F. M. Cocke's Motion To
Remand, etc., Apr. 25, 1975......... 579
Arizona Supreme Court's Order Grant-
ing F. M. Cocke's Motion To Remand,
OSC. 5 APE. 30, LTS. nccccccccecccccee 888
Appellant F. M. Cocke's Motion in
Court of Appeals For Permission
to enlarge the record and to
petition for rehearing, May 9, 1975. 587
Court of Appeals' Order granting
F. M. Cocke's motion to enlarge
the record and denying his petition
for rehearing, May 16, 1975......... 592
eee Me PO Baten ee &
Court of Appeals' letter transmitt-
ing the record enlarged by the
addition of three volumes of
depositions, and reciting the
timely filing of a second peti-
tion for review on May 21, 1975,
NI ae ee a
Arizona Supreme Court's Order deny-
ing review, Vice Chief Justice
rred C. Struckmeyer, Jr., voting
to grant, June 18, 1975...cccccccces
Notice of substitution of counsel
for Francis M. Cocke, July 3, 1975..
Appellant F. M. Cocke's Motion in
Arizona Supreme Court fwr Rehear-
ing on Order of June 18, 1975 deny-
ing review, July 3, 1975............
Arizona Supreme Court's Order deny-
ing F. M. Cocke's Motion for re-
hearing, and stating that justices
Jack D. H. Hays and Lorna E. Lock-
wood disqualified themselves from
any participation in this matter,
SGiy 15, {97S .cccces TUTTTTITe eeccce
593
596
597
FRANCIS M. COCKE, Plaintiff
1320 South Priest Road
Tempe, Arizona 85281
(602) 967-0734
In propria persona
Filed:
| January 14, 1974
IN THE UNITED STATES DISTRICT COURT
Wn Bin Darides
DISTRICT OF ARIZONA
FRANCIS M. COCKE,
Plaintiff,
vs.
CIV 74-20
PHX WPC
IRWIN S. CANTOR, EINO M.
JACOBSON, FRANCIS J. DONO-
FRIO, WALLACE O. TANNER,
HUBERT KELLY, STEVEN H.
SCHNEIDER, LORETTA S.
WHITNEY, POWELL B. GILLEN-
WATER, TRANSAMERICA TITLE
INSURANCE COMPANY, TITLE
INSURANCE COMPANY OF MINN-
ESOTA, JAMES STEWART COM-
COMPLAINT FOR
RELIEF FROM
STATE COURT
JUDGMENTS AND
ORDERS ENTERED
WITHOUT JURIS-
DICTION, AND
FOR INJUNCTION
meme eee ee ee eee ee ee ee ee ee
jira se AS lio alia nh ari Sete alae Oe ici tetsdas:
PANY and M. SETH HORNE and ) AND DAMAGES
MAURINE D. HORNE, his wife,)
JOAN H. COCKE, and ARLEIGH )
H. BURTON, )
)
Defendants.)
)
shai 2 ints a) tellin A ebeed. 7
> oo
‘
I.
PRELIMINARY STATEMENT OF
PLAINTIFF'S CAUSE OF ACTION
On October 9, 1968, plaintiff F. M.
Cocke and Joan H. Cocke (divorced) as Sellers
entered into a written agreement with James
Stewart Company or its nominees as Buyers,
for the sale and purchase of two parcels of
land under the terms set forth in written
escrow instructions to Transamerica Title
Insurance Company of Arizona, as Escrow
Agent and Title Insurer. Inasmuch as Trans-
america remains unwilling to issue its title
policies and close the escrow in accordance
with new demands [2] made by Buyers, as
well as unwilling to return Sellers' deeds
following repudiation or cancellation of the
escrow agreement, there has been no transfer
of title or change in possession under its
terms. Title to an undivided half-interest
in Parcel 1 was and is held by First Nation-
al Bank of Arizona as trustee, and its addi-
tional escrow instructions were deposited
into escrow on or about October 25, 1968,
along with its deed, and were accepted by
all parties as part of the escrow instruc-
tions agreed to as constituting the terms
of deposit of Sellers' three deeds. Joan H.
Cocke is life tenant of the trust. A copy
of the agreement and of the trustee Bank's
additional instructions are attached hereto
as Exhibit A. The fine print escrow in-
structions on the back of Transamerica's
printed escrow form have been retyped to
more legible size. F. M. Cocke's deed to
his undivided half-interest in Parcel 1 and
his deed to his Parcel 2, copies of which
are attached as Exhibit B, were deposited
into escrow by the broker on or about
December 31, 1968, following a survey to
determine the exact metes and bounds of
each of the two Parcels.
Following the deposit of the trustee
Bank's deed, Joan H. Cocke, James Stewart
Company with its nominees M. Seth Horne and
Maurine D. Horne as Buyers, and Transamerica,
attempted by joint and several activities to
bring about substantive alterations in the
escrow instructions, and joined in concerted
attempts to mislead and to coerce F. M. Cocke
into submitting to such alterations. Each
of such three parties in a separate suit in
Civil Case No. C-222472 in Maricopa County
Superior Court sought and obtained through
an attorney at law the entry of a separate
judgment and decree against F. M. Cocke.
Each of these judgments in intent, substance
and effect does unlawfully alter or delete
at least one of the controlling terms of
such escrow instructions, without jurisdic-
tion in the court. The entry of such judg-
ment [3] has deprived F. M. Cocke of a
right, privilege or immunity secured to him
by the federal constitution and laws, in fur-
therance of the concerted attempts by such
other three parties to mislead and to coerce
him into submitting to such alterations.
Subsequently, the state trial court
judge and two appellate court judges entered
orders in aid of carrying such unlawful al-
terations into effect. By the entry of each
such order the judge has deprived F. M. Cocke
of a right, privilege or immunity secured to
him by the federal constitution and laws, in
furtherance of such concerted attempts to
mislead and to coerce him into submitting to
the alterations. By wrongfully using the
coercive power of the State of Arizona in
aid of carrying such unlawful alterations
into effect, each of such judges in further-
ance of such concerted attempts has joined
in an attempt, by unlawful threat of force
to be applied under color of official right,
to extort from F. M. Cocke his consent to
such unlawful alterations, so depriving him
of a right, privilege or immunity secured
to him by the federal constitution and laws,
and obstructing the due course of justice
in the courts of the State of Arizona.
Under pretense and color of state law
and authority, such other parties to the
agreement, their attorneys at law, and the
three judges by joint and several action
with discriminatory intent and purpose have
subjected or caused to be subjected plain-
tiff F. M. Cocke to the deprivation of
equal rights, privileges and immunities
secured by the constitution and laws of
the United States to a citizen thereof, in-
cluding deprivation of his right to like
access to the courts of the State of Ari-
zona for the protection of property, the
prevention and redress of wrongs, and the
enforcement of contracts. Plaintiff has
been deprived of his civil rights to equal
protection of the laws and due process of
law guaranteed by the 14th Amendment to the
federal [4] constitution. By such de-
privations plaintiff has been damaged by
way of harassment, extra expense, the direct
taking of his time, and delay in making
higher and better use of his land.
II.
JURISDICTION
The jurisdiction of this court is in-
voked under 28 U.S.C. §1331, since federal
guestions are involved in this action, and
under 28 U.S.C. §1343, since plaintiff's
rights, privileges and immunities under the
laws and Constitution of the United States
have been denied under color of state law.
Plaintiff's cause of action arises under
such laws and Constitution and under the
equal protection and due process clauses of
the 14th Amendment. Statutory foundation
for plaintiff's suit may be found in 42
U.S.C. §1981, 1982 and 1983, since defend-
ants' conduct denies plaintiff's federal
statutory and constitutional rights, and
42 U.S.C §1985, since defendants’ joint con-
duct amounts to conspiracy, and 42 U.S.C.
§1986, since each of the defendants neglect-
ed or refused to prevent the offending con-
spiratorial conduct, and 42 U.S.C. §1988,
with respect to proceedings in vindication
of civil rights.
III.
THE PLAINTIFF
Plaintiff F. M. Cocke is and has been
for more than sixty-five years a citizen of
the United States and a resident of Maricopa
County, and is and has been for more than
twenty-five years the owner of Parcel 2, and
the owner of an undivided half-interest in
Parcel 1, and the farmer of both parcels.
The duties assumed by F. M. Cocke under
the agreement and escrow instructions, as
spelled out on page 1 and by paragraph 1 of
the fine print, were to deposit good and
sufficient deeds into escrow and to sign the
mortgage releases when prepared and deliver-
ed into escrow by Buyers. These things he
timely did. [5]
Fine print paragraph 14 places on the
Escrow Agent, not on F. M. Cocke, the duty
to close the escrow "when these instructions
have been complied with." The quoted clause
includes compliance by the Buyers and Trans-
america as escrow agent and title insurer
as well as by F. M. Cocke. On March 10,
1969, following Buyers' delivery into escrow
of a number of new written demands, the
escrow agent formally notified Sellers by
mail that Buyers had done everything required
t ae a
of them to close the escrow. However on
November 27, 1972, Transamerica, Hubert
Kelly for the Buyers, and Loretta Whitney
for Joan H. Cocke, entered into a written
agreement that Buyers had not yet complied
with the October 9, 1968, agreement, and
would deposit additional funds into escrow
to cover the deficiency. The judgment in
favor of Buyers, September 27, 1972, assess-
ed more than $47,000 in damages against F. M.
Cocke on Buyers' claim that he was the one
who had delayed close of escrow. The trial
court judge ignored F. M. Cocke's timely re-
guest for findings on what act or failure
to act by him caused the delay.
F. M. Cocke's Parcel 2 as described in
his deed was necessarily subjected to the
Notice of Lis Pendens filed by the State of
Arizona in its eminent domain action against
him. Such action was filed in late 1965,
and was not settled until early 1970, at
which time the State gave up its attempt to
take a 20-foot strip of land out of Parcel
2 without payment. The State attempted to
establish that the south boundary of Parcel
2 was 27-1/2 feet north of the centerline
of the Jenkins Ditch, a large drainage canal
which borders the south boundary of Parcels
1 and 2 and provides drainage. In order to
establish such south boundary at its true
location, and so reduce the area the State
was taking without payment, F. M. Cocke had
the canal right of way surveyed and marked.
The surveyor had previously surveyed Parcels
l and 2, and designated the canal right of
way as Parcels [6] 1A and 2A. Transamerica
and the Buyers were advised of the dispute
and were furnished copies of the surveys of
all parcels by the surveyor in December,
1968. Some fifteen months later the State,
after changing its land descriptions several
times, finally amended to agree with the 1892
grant of right of way for the canal, with the
ee eee
subsequent prescriptive use of the canal
north of the grant, and with the survey,
which placed the boundary line at the north
water edge of the canal, some 20 feet
farther south than originally claimed.
As more particularly hereinafter set
forth, in significant time sequence, Buyers
and Transamerica joined in two attempts to
obtain F. M. Cocke's signature to warranty
deeds which included Parcels 1A and 2A, in
addition to Parcels 1 and 2, although the
right of way of the Jenkins Ditch was speci-
fically excluded from the land descriptions
made a part of the October 9, 1968, agree-
ment and instructions, and was not the sub-
ject of any additional contract. The Cockes,
and therefore the trustee Bank, had never
acquired title to the canal right of way,
although it was within their fence lines.
Transamerica also attempted, as also dis-
cussed below, to establish that F. M. Cocke
was in default because the surveyor had in-
cluded as part of Parcel 2 a small triangle
of land, about 65 square feet, not yet taken
by the State at the time of his survey and
description of Parcel 2. This is the Brown
Engineering Company's description, which was
copied into F. M. Cocke's deed to Parcel 2.
However, the purpose of the Notice of Lis
Pendens was to notify all interested parties
that the State was lawfully taking from F. M.
Cocke's property rights, including his rights
in Parcel 2, as much as was needed for public
use but only as much as the public was will-
ing to pay for. The attorney who represent-
ed the State in its eminent domain case,
Maricopa County No. 183278, against F. M.
Cocke, was a law partner of Transamerica's
attorney in C-222472. [7]
eS eat e. Peee eee rs Sees
IV.
THE DEFENDANTS
1. THE PARTIES TO THE AGREEMENT,
AND THEIR LAWYERS.
(1) THE ESCROW AGENT AND TITLE
INSURER.
Transamerica Title Insurance Company of
Arizona, an Arizona corporation, accepted
the escrow instructions as the terms of de-
posit of Sellers' three deeds, and so
assumed the duties to comply with such in-
structions as escrow agent and as title
insurer. However, its assumption of duties
as indicated on the face of its printed
escrow form was subject, among other things,
to paragraphs 24 and 43 of the fine print
instructions on the back.
Cancellation paragraph 24 specifies
that if the escrow agent, either because it
is unable or unwilling, fails to comply with
the escrow instructions, or escrow agreement
(unless already cancelled under paragraphs
16-18 by failure of Seller or Buyer to com-
ply), the escrow agreement is thereby ended.
The escrow agent is directed to collect the
charges and return any extra money to the
depositors thereof, and the deeds are to be
returned to the parties who executed same.
The unwillingness of Transamerica to issue
any title policy provided for puts an end
to the agreement in the same manner as the
failure of the escrow agent to comply with
the instructions. Such end of the agreement
is independent of compliance by Seller and
Buyer, and requires no notice to or by any
party.
Paragraph 43 provides, simply and effec-
tively, that "Close of Escrow" shall mean
the date of the policy of title insurance
to be issued. In other words, the escrow
cannot close unless and until Transamerica
guarantees the titles in the Buyer. As
briefly stated in Higgins v. Kittleson
(1965), 1 Ariz. App. 244, 401 P.2d 412:
[8] The law is well settled that an
escrow agent acts in a fiduciary
Capacity and must conduct affairs
with which he is entrusted with
scrupulous honesty, skill, and
diligence. Tucson Title Ins. Co.
v. D'Ascoli, 94 Ariz. 230, 383 P.2d
119 (1963). That he (Escrow Agent)
is a trustee and must act in accord-
ance with terms of the escrow agrce-
ment. Malta v. Phoenix Title &
Trust Co., 76 Ariz. 116, 259 P.2d
554 (1953). And that if he (Escrow
Agent) delivers a deed in violation
of the terms of deposit that the
deed conveys no title to grantee.
Hixon v. Davis, 46 Ariz. 543, 52
P.2d 1166 (1935), D'Ascoli (supra).
Under these conditions, the unwillingness of
Transamerica to issue a title policy insuring
the grantee's title could stem from any fail-
ure of the escrow agent or of a buyer to
comply with the escrow instructions which
constitute, as here, the terms of deposit
of a seller's deed, as well as from a de-
fect in such deed or in the title to the
land described therein.
In the proceedings leading to the sep-
arate judgments in C-222472 in favor of
Transamerica, and in F. M. Cocke's appeals
from such judgments, Transamerica has been
represented by Powell B. Gillenwater as its
attorney at law.
(2) THE BUYERS
James Stewart Company is an Arizona
corporation engaged in the construction
business and in the development of land.
M. Seth Horne is president of the company.
He and his wife, Maurine D. Horne, were
named as nominees by the Company acting by
its president. Wallace O. Tanner signed
the agreement and escrow instructions for
the Buyers as vice president of the Com-
pany. He also acted in the capacity of
attorney at law in C-222472 for the Company
and the Hornes until replaced in such re-
presentative capacity by Hubert E. Kelly
and Steven H. Schneider.
On March 5, 1969, at Transamerica's
office, the escrow officer handed to F. M.
Cocke for his signature a stack of docu-
ments. He signed the 25 mortgage releases,
but refused to sign the document on the
bottom of the stack. This was the warranty
deed which included Parcels 1A and 2A, in
addition to Parcels 1 [9] and 2, referred to
above beginning at page 6, line 10. Upon
questioning, the escrow officer stated that
such deed had been prepared and deposited
into escrow by the Buyers, with the verbal
instruction that F. M. Cocke's signature
was to be obtained thereon. Since F. M.
Cocke's deeds had been in the escrow file
for more than two months, he signed and
delivered into escrow, on a printed form
furnished by the escrow agent, a 13-day
notice of intent to-cancel upon the con-
tinued failure of the Buyers to comply, and
then left the office. As later alleged by
Buyers in their pleadings, the escrow agent
by telephone then reported the failure to
obtain the signature to Wallace Tanner, who
prepared a second spurious deed, without
Parcels 1A and 2A, for F. M. Cocke's sig-
nature. A copy of this No. 2 spurious deed
was attached to Buyers' complaint of April
22, 1969, as evidence that F. M. Cocke had
1l
refused to execute the deed required to be
executed by him. As evidence that he had
also refused to execute the mortgage re-
leases, Buyers attached 25 unsigned copies,
apparently of the 25 originals that F. M.
Cocke had signed on March 5, 1969. The
trial court judge made no findings on the
falseness of such claims or such evidence,
despite F. M. Cocke's protests.
Copies of F. M. Cocke's notice of in-
tent to cancel, and of the escrow agent's
notice thereof to Buyers are attached as
Exhibit C. The former specified that per-
sonal checks were not acceptable as payments
under a cancellation notice.
On March 7, 1969, the escrow agent re-
ceived Buyers' letter of new instructions
and demands, enclosing two personal checks
for $32,000 each, dated March 7, 1969, and
Buyers' notes and mortgages totalling about
$420,200. A copy of Buyers' letter, and of
the escrow agent's notice that Buyers had
so complied, are attached as Exhibit D. It
has not been disputed that Buyers' new in-
structions directed the escrow agent to:
[10] ITEM 1. Close the escrow with payment
of about $120,000 in trust land proceeds to
be made to life tenant Joan H. Cocke, con-
trary to the trustee Bank's escrow instruc-
tions.
ITEM 2. Close the escrow and record
the trustee Bank's warranty deed to Buyers,
subject to a mortgage to be simultaneously
recorded for $32,000 less than the balance
due.
ITEM 3. Close the escrow and record
F. M. Cocke's warranty deeds to Buyers,
subject to mortgages to be simultaneously
recorded for $52,000 less than the balance
due.
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12
ITEM 4. Close the escrow and record
warranty deeds to Parcels 1A and 2A to
Buyers.
ITEM 5. Accomplish Items 1 through 4
before turning over to Sellers the two per-
sonal checks for $32,000 each, as the annual
payment due January 2, 1969.
As mentioned above at page 5, line 5,
on March 10, 1969, the escrow agent noti-
fied Sellers by mail that by such instruc-
tions, documents and demands the Buyers had
done everything required of them to close
the escrow. In view of Buyers' demand that
the $64,000 represented by the two personal
checks was not to be paid unless and until
the warranty deeds included deeds to Parcels
1A and 2A, the escrow agent's notice to
Sellers, which amounted to notice that the
additional deeds were required by the escrow
instructions earlier agreed to, was its
second fraudulent attempt to secure warranty
deeds to Parcels 1A and 2A, the first having
failed five days earlier. Had either of
these attempts succeeded, the close of
escrow would have been delayed pending suc-
cessful conclusion of a quiet title suit by
the person who signed such deed against the
heirs of B. J. George, whose name does not
appear in the chain of title, at least to
Parcel 2, after 1903. This would have
effected a saving to Buyers of about $85
per day in interest charges, and a windfall
for the escrow agent in its free use of
funds already on deposit, [11] under fine
print paragraph 12.
On March 20, 1969, the escrow agent
advised F. M. Cocke that his notice of in-
tent to cancel was ineffective because he
was himself in default because Transamerica
was unwilling to issue its title policy on
Parcel 2 as described in F. M. Cocke's
13
deed. Transamerica based its announced un-
willingness on its unsupported and unsup-
portable claim that F. M. Cocke had been
divested of his earlier title to a tiny
triangle of land worth about $6.00, men-
tioned above at page 6, line 19, by a
neighbor's 1965 corrective quit-claim deed
to the State of Arizona, in connection with
its acquisition of highway right of way on
the other side, the south side, of the
Jenkins Ditch. The State, although named
grantee in the neighbor's deed, made no
claim of title thereunder, as shown by the
record in the eminent domain case.
One of the games being played with
Buyers' March 7, 1969, written demand for
the inclusion of Parcels 1A and 2A into the
deeds, with the March 10 written acceptance
and approval of such demand by the escrow
agent, and with the March 20 statement by
the escrow agent before a witness that
Transamerica was unwilling to insure title
to Parcel 2 as described in F. M. Cocke's
deed, was to mislead and coerce him into
Signing a new deed. The March 19 deadline
for compliance by Buyers, specified by the
escrow agent's written cancellation notice
to Buyers on March 6, 1969, had passed, and
unless Buyers and the escrow agent could
establish that F. M. Cocke was himself in
default when he filed his notice of intent
to cancel, the agreement had already come
to an end. F. M. Cocke's signature to any
sort of corrective deed would admit that
the earlier deed was in fact defective, that
his notice of intent to cancel was there-
fore ineffective, and that the agreement
was not cangélled even though Buyers had
not complied. (This would not affect its
repudiation.)
However, this concerted attempt did not
succeed, since [12] F.M. Cocke signed no
t a Awaid deta sae..
14
new deeds. The concerted attempt may ex-
plain why, when Buyers moved the contro-
versy to the state courts, about a month
later by filing their Complaint For Speci-
fic Performance of the agreement and escrow
instructions, they named as defendants only
the Sellers, and have never joined Trans-
america either as escrow agent holding the
deeds or as title insurer. The failure of
such attempt may explain the otherwise un-
explainable claims made by Buyers in their
Complaint, mentioned above at page 9, line
13, that F. M. Cocke had refused to execute
the required deed and mortgage releases,
and Buyers' submission of the unsigned
copies of the No. 2 spurious deed and the
second set of releases, as exhibits. F. M.
Cocke's signature on a set of corrective
releases, particularly if he had signed
the first set on November 5, 1968, before
the survey, as alleged by Transamerica in
a pleading verified by the escrow officer,
would serve the same purpose as a corrective
deed. The possibility of curing Buyers' can-
cellation of the agreement by this scheme
may explain attempts made by Buyers, with
the apparent aid of a judge, to persuade
F. M. Cocke to settle the dispute by the
seemingly harmless signing of the new deed
or the new releases.
On April 2, 1969, Wallace Tanner filed
for record a copy of the Agreement and es-
crow instructions of October 9, 1968, in
the office of the Maricopa County Recorder.
Subsequent tax bills add James Stewart Com-
pany as an owner.
(3) THE LIFE TENANT
Joan H. Cocke signed the agreement and
escrow instructions as life tenant of the
trust of which First National Bank of Arizona
is managing trustee. Joan H. Cocke is and
OR Pilati ithe a ea A je BA
15
has been for many years under constant
treatment for alcoholism. She was repre-
sented in the making of the agreement and
escrow instructions, and the agreement as
to the trustee Bank's instructions, and in
C-222472, solely by Loretta S. Whitney, as
her attorney at law. [13]
On October 10, 1968, by letter pre-
parec by attorney Whitney, F. M. Cocke and
Joan H. Cocke jointly directed the trustee
Bank, as authorized by the trust agreement,
to deposit into escrow its deed to the half-
interest in Parcel 1 held by it, along with
specific escrow instructions: first, that
the sale was to be consummated in accordance
with the instructions already agreed to by
all parties, which included the cancella-
tion provisions, and second, that the pro-
ceeds of sale of the trust land were to be
disposed of as further instructed by F. M.
Cocke and Joan H. Cocke.
The trustee Bank deposited its escrow
instructions as directed, but along with a
deed to the whole of Parcel 1 instead of the
half-interest held by it, which deed it re-
fused to correct. It appears that because
of this spurious deed attorney Whitney was
subsequently able to obtain a judgment that
the proceeds from the trust half-interest
in Parcel 1 were to be paid to Joan H. Cocke,
alone, free of trust. Being aware that F. M.
Cocke was to be paid for his half-interest
(none of his land has ever been in a trust),
trial court judge Jack D. H. Hays on Decem-
ber 31, 1968, plausibly ruled that Joan H.
Cocke was entitled to be paid for the other
half, since according to the spurious deed
both half-interests were held in trust.
However, unless it be established that
the various state courts had jurisdiction
in C-222472 to delete the cancellation
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provisions from the escrow agreement, and
to delete from the record Buyers' letter of
new demands received by the escrow agent on
March 7, 1969, along with the escrow agent's
letter of March 10, 1969, notifying Sellers
that by such new demands Buyers had complied
with the escrow agreement, it also appears
that the question of the disposition of the
trust land proceeds is moot. There are to
be no such proceeds because the agreement
came to an end in March, 1969, by repudia-
tion or cancellation in accordance [14] with
paragraphs 18 or 24, and the trustee Bank's
deed must therefore be returned to it, as
specified by the cancellation provisions.
Without more, this is established by the
written agreement of November 27, 1972,
mentioned above at page 5, line 9, between
Hubert Kelly for Buyers, Loretta Whitney for
Joan H. Cocke, and Transamerica, that Buyers
had not yet complied with the October 9,
1968, agreement. Further, by letter to
Transamerica dated August 29, 1973, Buyers
demanded that Transamerica comply with the
judgment of September 27, 1972, against
F. M. Cocke, alone, obtained by Buyers in
their suit for specific performance of the
escrow agreement, in which Transamerica was
never joined. In the letter Buyers reminded
Transamerica that in a meeting in its office
in early January, 1973, Buyers and Trans-
america agreed between themselves that
Buyers had not yet complied with the agree-
ment and escrow instructions of October,
1968. Copies of the November 27, 1972,
agreement, and of Buyers' letter of August
29, 1973, are attached as Exhibit E. As
established by their letter of August 29,
1973, Buyers deposited additional funds in
order to attempt to comply in January, 1973:
with the October, 1968, escrow instructions;
with F. M. Cocke's March 5, 1969, written
13-day notice of intent to cancel upon
Buyers’ continued failure to comply; with
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the escrow agent's March 6, 1969, written
notice to Buyers that they must comply by
March 19, 1969; with the escrow agent's
March 10, 1969, written notice to Sellers
that Buyers had complied; and with Buyers'
own letter of March 26, 1969, to Trans-
america affirming that all requirements on
the part of the Buyers had been fully per-
formed.
(4) THE BROKER
Arleigh H. Burton signed the escrow
instructions as the real estate Broker. He
has taken no position in the controversy in
the state courts except to testify by dep-
sition. Fine print [15] paragraph 23,
which provides benefits for a broker, was
Superseded by the sixth paragraph ofSchedule
"A", a part of the escrow instructions.
Arleigh R. Burton is named as a nominal de-
fendant herein to afford him proper notice
in the event he should choose to join in
this suit.
2. THE JUDGES
(1) IRWIN S. CANTOR, acting as the
judge of the Superior Court of Arizona, in
and for the County of Maricopa, in Civil
Case No. C-222472, has entered judgments and
orders without jurisdiction in the court.
The litigation in the state courts be-
gan in April, 1969, when Buyers filed their
Complaint For Specific Performance of the
agreement and escrow instructions against
only Sellers. F. M. Cocke along with his
answer counterclaimed against Buyers,
against Transamerica as an additional
defendant on his counterclaim, and cross-
claimed against Joan H. Cocke, all as joint
as well as several defendants indispensable
to an adjudication of the rights and
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obligations arising under the single con-
tract entered into. However, the judge on
Transamerica's motion ordered F. M. Cocke's
claims separated by amendment into three
separate claims, against each instead of all
of the other parties to the agreement, over
F. M. Cocke's objections. The judge there-
after dealt with the separated claims as
separate and independent controversies aris-
ing from separate and independent causes of
action, and eventually entered separate and
independent judgments against F. M. Cocke.
Each of these three judgments, in order to
grant the relief sought by one of such three
other parties, decisively altered the escrow
instructions. Copies of the three judgments
are attached hereto as Exhibit F. F. M.
Cocke did not amend as’ to Joan H. Cocke, her
claim to the trust land proceeds appearing
by that time to be moot. Buyers had already
answered the original counterclaim, and were
basing [16] their defense on the unsupport-
able claims that F. M. Cocke had refused to
execute the deed and mortgage releases re-
quired to be executed by him, the same as
in their complaint.
(2) EINO M. JACOBSON, acting as a judge
of Department B, Division 1 of the Arizona
Court of Appeals, has entered orders with-
out jurisdiction in the court, in an appeal
in C-222472.
F. M. Cocke appealed from the early
separate summary judgment of November 10,
1970, in favor of Transamerica on its coun-
terclaim for attorney fees by the enforce-
ment of only fine print paragraphs 8, 9 and
10. Subsequent to the filing of the briefs,
F. M. Cocke sought by special action the
dismissal of Transamerica's suit against
him, on the ground that the trial court,
and therefore the appellate courts, were
without jurisdiction in the absence of the
19
Buyers. F. M. Cocke also sought stay of
the proceedings on his claims against Trans-
america until his claims against Buyers, as
indispensable parties, could be brought
before that court.
However, Department B threatened sanc-
tions for bringing a frivolous speciai action,
and after a recess denied all relief. Wallace
Tanner, attorney for Buyers, and several mem-
bers of the staff of James Stewart Company
were present at the hearing, although Buyers
still maintain that there was no connection
between them and Transamerica in C-222472.
During the recess immediately following the
threat, Wallace Tanner urged immediate
settlement. With Eino Jacobson writing,
the judgment awarding the attorney fees was
affirmed. The issues of whether the agree-
ment had been repudiated or cancelled, so
putting an end to Transamerica's and Buyers'
rights thereunder, before the attorney fees
were incurred, were avoided by substitution
of seven questions apparently framed by the
writer for the questions actually presented
for review by F. M. Cocke's opening brief.
The documentary evidence, presented to the
Court of Appeals by reference [17] in the
brief to specific pages of the abstract of
the record, was ignored, as in the trial
court. The Court of Appeals' decision is
reported as Cocke v. Transamerica (March,
1972) 16 Ariz. App. 556, 494 P.2d 756. In
Balitimore & Ohio Railroad Company v. United
States, 298 U.S. 349, 80 L.ed 1209, 56 S.Ct.
797 (1936), the court said at L.ed 1224:
eo ele ela. eatin! Regd
The due process clause assures a
full hearing before the court or
other tribunal empowered to per-
form the judicial function in-
volved. That includes the right
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to introduce evidence and have
judicial findings based upon it.
(3) FRANCIS J. DONOFRIO, acting as a
judge of Department A, Division 1 of the
Arizona Court of Appeals, has entered orders
without jurisdiction in the court, in an
appeal in C-222472.
Following entry in the trial court on
September 27, 1972, of the separate judg-
ment in favor of Buyers, F. M. Cocke timely
filed a motion to vacate, for want of juris-
diction over the subject matter, that judg-
ment and the Transamerica judgment as in-
creased to $8,364.24 by the trial court
judge after remand. The motion to vacate
was denied November 6, 1972. The issues
of whether the agreement had been repudiated,
or cancelled by the failure of Buyers or the
escrow agent to comply or the unwillingness
of Transamerica to issue its title policy,
had still not been ruled on by any court.
The documentary evidence, including the
agreement and escrow instructions, and
Buyers’ letter of new demands in violent
conflict therewith, was still ignored. On
January 4, 1973, F. M. Cocke filed notice
of appeal from the two judgments and from
the order of November 6, 1972, denying the
motion to vacate same. Rule 73(b) as
amended, 16 ARS Rules of Civil Procedure,
allows sixty days to file notice of appeal,
which time commences to run from denial of
a motion to vacate, unless such motion does
not qualify as a Rule 59(1) motion to alter
Or amend.
Arizona adopted as its Rule 59(1) the
present Federal [18] Rule of Civil Pro-
cedure 59(e). Moore's Federal Practice at
Volume 6A, page 59-250 (earlier edition p.
3880), says:
21
Although the motion under (e) is
to "alter or amend” the judgment,
it would perhaps be more accurate
to say that subdivision (e) deals
with motions to alter, amend, or
vacate. . . .The cases have wisely
recognized the power of the court
to vacate and set aside a judgment
under 59(e).
Volume 3, Federal Practice and Proced-
ure, Rules Edition, Barron and Holtzoff, in
§1308, page 387, discusses Federal Rule
59(e). Note 84.1 includes:
A motion to set aside a judgment
is one to alter a judgment under
Rule 59(e). . . .Steward v. Atlantic
Refining Co., C.A.3d, 1956, 235
F.2d 570.
-
The 1971 Pocket Part to Volume 3, for
use during 1972, states under §1308 at page
279:
The First Circuit has held that
resort should be made to the pro-
cedure of Rule 59(e), rather than
Rule 60(b), if the time for moving
under the former cule has not ex-
pired. Thus where a motion to
vacate a judgment is made within
10 days of entry of judgment, and
does not specify the rule under
which it is made, it will be con-
strued as a Rule 59(e) motion and
will suspend the finality of the
judgment for purposes of appeal.
The First Circuit case was Foman v. Davis,
C.A.lst, 1961, 292 F.2d 85, reversed on other
grounds, 1962, 83 S. Ct. 227, 371 U.S. 178,
9 L.ed 2d 222.
22
At page 280 oi the Pocket Part, note
84.1 includes:
Appellants' timely motion to
vacate judgmer.t of dismissal was
equivalent of a motion to alter
or amend judgment and terminated
running of time for filing notice
of appeal from date of judgment
of dismissal to date of denial of
motion to vacate; . . .Theodoropou-
los v. Thompson-Starrett Co., C.A.
2a 1969, 418 F.2d 350, certiorari
denied 90 S. Ct. 1697, 398 U.S.
905, 26 L.ed 2d 65.
Subsequent to the filing of F. M.
Cocke's opening brief, Francis J. Donofrio,
adhering to the trial court judge's separa-
tion of F. M. Cocke's counterclaims against
Transamerica from those against the Buyers,
entered an order dismissing the appeal in
its entirety as to the Buyers. The only
ground stated was [19] that the notice of
appeal was untimely. F. M. Cocke's motion
for findings of the particular grounds upon
which the stated untimeliness was based was
denied by order entered by Francis J.
Donofrio. Later, he entered the order dis-
missing the appeal as to Transamerica, on
its motion, on the stated ground that the
appeal was frivolous, so once again avoid-
ing the issues of whether the agreement had
been repudiated or cancelled, and ignoring
the documentary evidence.
In Preston v. Denkins (1963) 94 Ariz.
214, 382 P.2d 686, the Arizona Supreme Court,
sitting en banc, ina unanimous decision
held that a judgment void for lack of juris-
diction may be set aside by means of a motion
to vacate, and that an order setting aside
an entire judgment as void does not leave
the judgment valid as against cefendants
23
not properly before the court on the motion
to vacate.
3. THE CORPORATE OFFICER OF THE COURT
Title Insurance Company of Minnesota,
a Minnesota corporation, did willingly
accept its appointment as an officer of the
court under the trial court judge's Order
and Writ of Assistance, etc., of October
31, 1973, on Buyers' Application in C-222472.
Minnesota Title agreed to close the escrow
in accordance with the escrow instructions
as altered by the previous judgments and
orders, as further altered by such Order
and Writ, and as to be still further al-
tered by the trial court judge in accordance
with such Order and Writ. Minnesota Title
has willingly accepted delivery to it by
Transamerica of the escrow file, including
the deeds, in the following circumstances:
The Order of October 31, 1973, took judicial
notice of, and so established, the fact that
Transamerica was unwilling as escrow agent
to comply with the escrow instructions and
also unwilling to issue any title policy, so
requiring under paragraph 24 the return of
Sellers' deeds to the party who executed
same. It was established [20] ™ November 27,
1972, and again in early January, 1973,
since the Buyers did not even attempt to
comply until the latter date, that the
escrow agent was unable or unwilling to
comply with the escrow instructions on
March 10, 1969, when it formally notified
Sellers that Buyers had complied, as pointed
out beginning at page 14, line 3, above. In
the face of the established failure of the
Buyers to comply, the established inability
or unwillingness of the escrow agent to
comply, and the established unwillingness
of Transamerica to issue its title policy,
the trial court judge, the Buyers, Trans-
america, and Minnesota Title, instead of
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returning the deeds to the parties who exe-
cuted them, joined in the delivery of such
deeds to Minnesota Title, in furtherance
of the concerted attempt to extort from
F. M. Cocke his consent to the unlawful
alterations to the agreement and escrow
instructions.
Copies of Buyers’ Application For Writ
Of Assistance, etc., of the trial court
judge's Order of October 31, 1973, granting
the Writ, and of the Writ itself, are
attached as Exhibit G.
V.
ADDITIONAL ALTERATIONS
SOUGHT BY THE OTHER THREE PARTIES
Subsequent to the deposit of his deeds
into escrow by the broker on or about Decem-
ber 31, 1968, F. M. Cocke advised Mr. Tanner,
who signed the agreement for James Stewart
Company, that he was in need of funds, and
could wait no longer for the Buyers to com-
plete their metes and bounds descriptions
of the 5S-acre mortgage release parcels. Mr.
Tanner suggested, and F. M. Cocke agreed,
that $20,000 would be advanced to F. M.
Cocke from escrow funds upon his furnishing
a note and mortgage on Parcel 2 for $40,000,
as dowble security therefor, and allowing
more time for Buyers to complete their re-
lease descriptions. On or about January
10, 1969, F. M. Cocke executed and deposited
[21] on the escrow officer's desk the
$40,000 note and mortgage, and received in
exchange the escrow agent's check for
$20,000 drawn on escrow funds. However,
Mr. Tanner picked up the note and mortgage
from the desk and carried them from the
escrow office, over F. M. Cocke's objec~
tions but with the tacit approval of the
escrow officer, in violation of fine print
25
paragraphs 11 and 12 of the escrow agree-
ment. By his objections F. M. Cocke made
it clear that it was his intention to de-
liver the note and mortgage into escrow.
As defined in ARS §44-2208(14) delivery
means voluntary transfer of possession.
Even if Transamerica could establish, as
claimed by it, that by James Stewart Com-
pany's removal of the note and mortgage it
merely took back its $20,000 earnest money
payment delivered to Sellers by the escrow
agent, it is clear that the escrow could
not close until either the note with mort-
gage, or the extra $20,000 represented by
same, was delivered into escrow.
2. On January 21, 1969, F. M. Cocke
signed and delivered into escrow the In-
structions And Agreement On Distribution
Of Funds prepared by the broker, a pro~
fessor of accounting, in accordance with
the trustee Bank's instructions specifying
joint control of the trust land proceeds
by F. M. Cocke and Joan H. Cocke. By letter
of February 26, 1969, to the escrow agent,
prepared by her attorney, Joan H. Cocke re-
pudiated the trustee Bank's adoption of the
cancellation provisions and its instruc-
tions as to the joint control, and demanded
payment of such proceeds direct to her.
Buyers by their documents and new demands
delivered into escrow my mail on March 7,
1969, the escrow agent by its March 10,
1969, letter notifying Sellers that by such
documents and demands Buyers had complied,
and the trial court judge in the judgment
entered September 27, 1972, in favor of
Buyers, joined in such repudiation.
3. March 19, 1969, was the last day for
Buyers to [22] comply under the mandatory
cancellation notice received from the
escrow agent, following F. M. Cocke's
March 5, 1969, notice of intent to cancel.
re P P , ; awe
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26
4. As discussed above at page ll, line
2, to page 12, line 20, on March 20, 1969,
the escrow agent announced Transamcrica's
unwillingness to issue its title policy on
F. M. Cocke's Parcel 2. Under paragraph
24 such unwillingness put an end to the
agreement, if not already cancelled hy the
escrow agent's March 10, 1969, notice that
Buyers had complied or by the failure of
Buyers to comply by March 19, 1969.
5S. As mentioned above at page 14, iine
26, on March 26, 1969, in a second letter to
the escrow agent, Buyers affirmed their
position that the documents and demands de-
livered into escrow on March 7 met all re-
quirements on the part of the Buyers.
Buyers' cortinued insistence that their
new demands be met as a condition to close
of escrow constituted, without more, repu-
diation of the agreement. In Equitable
Trust Co. of New York v. Denver and R. G.
Railroad Co. v. Western Pac. Railroad Co.
(1917) 244 F. 485, affirmed CCA, 2d (1918)
250 F. 327, cert. den. (1918) 246 U.S. 672,
62 L.ed 932, 38 S. Ct. 423, Learned Hand,
District Judge, said at 244 F. 501:
To say that you will not pay as
bound, unless the promisee make
some concession in his rights,
is to say that you will not pay
as you have promised at all.
That is repudiation without
even pretense of justification.
When the default followed, it
took its character from this
preceding declaration, and gave
the obligee the right to treat
the contract at an end and to
sue.
27
VI.
THE ENLISTMENT OF STATE POWER
1. On April 22, 1969, Buyers filed
their Complaint For Specific Performance of
the agreement and escrow instructions, and
for damages for delay, against only Sellers.
A copy of the agreement and instructions
was attached to the complaint. The [23]
case was assigned to trial court judge
Irvin Cantor as Case No. C-222472. Al-
though Buyers demanded as part of the re-
lief sought that the title insurance poli-
cies be issued, that the escrow be ordered
closed, and that Transamerica be ordered
to release the mortgages on the 25 release
parcels as provided in the agreement, Buyers
have never joined Transamerica, as mentioned
above at page 12, line 1. The suit was
prosecuted against only F. M. Cocke.
2. On June 23, 1969, F. M. Cocke
filed his answer and compulsory counter-
claim and cross-claim jointly and severally
against Buyers, Transamerica, and Joan H.
Cocke, as indispensable parties to the ad-
judication of the mutual rights and obliga-
tions arising from the single contract.
F. M. Cocke's counterclaim sought return
of Sellers deeds, and damages for delay,
based on his claims:
(1) that the rights and obligations
of Sellers and Buyers were subjected to the
rights and obligations delegated by them to
Transamerica as esscrow agent and title
insurer, particularly by fine print Can-
cellation paragrapii 24;
(2) that without more the agree-
ment had been repudiated, and so terminated
or cancelled, by Buyers' new demands re-
ceived by the escrow agent March 7, 1969,
‘ , Lo ntl ob
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28
so requiring return of the deeds;
(3) that the agreement had been
cancelled as specified by paragraph 24 by
the escrow agent's formal written notice
of March 10, 1969, to Sellers that by the
documents and new demands received from
Buyers they had done everything required
of them to close the escrow, so establish-
ing the escrow agent's inability or un-
willingness to comply with the instructions
earlier agreed to, and requiring the return
of the deeds;
(4) that the agreement had become
cancelled as specified by paragraph 18 by
Buyers' failure to comply within the [24]
13-day period following the filing on March
5, 1969, of F. M. Cocke's notice of inten-
tion to cancel, as provided for by para-
graphs 16 and 17, so requiring return of
the deeds; and
(5) that the agreement had been
cancelled as specified by paragraph 24 by
Transamerica's unwillingness to issue its
title policy on Parcel 2, as announced on
March 20, 1969, by the escrow officer, so
requiring return of the deeds.
3. By minute entry of September 2,
1969, the trial court judge ordered that
F. M. Cocke's counterclaim and cross-claim
be amended so as to separate the joint
claims into three separate claims, one
against each of the three defendants as
discussed above at page 15, line 19, with
separate and independent judgments. F. M.
Cocke did not amend his cross-claim against
Joan H. Cocke, for the reasons stated above
at page 15, line 30.
4. On October 3, 1969, Transamerica
counterclaimed against F. M. Cocke, seeking
29
attorney fees by the enforcement of fine
print paragraphs 8, 9 and 10 without regard
to the issues raised by F. M. Cocke as to
whether the agreement had been. repudiated
or cancelled before the attorney fees were
incurred.
5. On November 10, 1970, the trial
court judge entered separate summary judg-
ment in favor of Transamerica and against
F. M. Cocke on their opposing counterclaims,
and awarded costs and attorney fees to
Transamerica in the amount of $5,192.24.
Neither in nor in connection with the judg-
ment where there any findings upon the
issues raised by F. M. Cocke or upon the
undisputed documentary evidence presented
in support of his claims, contrary to Rule
56 (d).
6. On November 19, 1970, the trial
court judge entered judgment in favor of
Joan H. Cocke on F. M. Cocke's cross-claim
against her, without regard to the cancel-
lation provisions, which were adopted by
the trustee Bank. The deposit of the
trustee Bank's deed into escrow in the
written terms which accompanied [25]
such deposit, and the acceptance thereof
by the escrow agent, constituted a contract
in and of itself between the trustee Bank
and the escrow agent. Such contract could
not be altered by a court without the con-
3 sent of both, and the terms of deposit re-
quired under paragraphs 18 and 24 the return
of such deed upon the established failure
of the escrow agent and of Buyers to comply
in March, 1969.
7. By minute order of December 8, 1970,
the trial court judge granted Buyers' motion
for summary judgment against only F. M.
Cocke, on their opposing claims. Trial on
the issue of the dollar amount of the
30
damages for delay claimed by Buyers to have
been caused by F. M. Cocke was subsequently
set.
8. Prior to the trial without a jury
F. M. Cocke under Rule 52(a) requested
findings of fact and conclusions of law as
to when and by what act or failure to act
he had failed to comply with the agreement
and instructions so as to cause the claimed
delay. He also requested findings and con-
clusions as to when and by what act Buyers
hai complied so that the escrow could have
been properly closed instead of cancelled.
These requests were completely ignored.
The beginning of the period of claimed de-
lay was thus never established.
9. On September 27, 1972, following
the trial, the trial court judge entered
judgment in favor of Buyers, granting them
specific performance by F. M. Cocke, alone,
of the agreement and instructions as alter-
ed by the judgment, and awarding them dam-
ages against him for claimed delay in the
amount of $47,004.86. As with the judgment
in favor of Transamerica, there were no
findings upon the issues raised by F. M.
Cocke or upon the undisputed documentary
evidence presented in support of his claims.
10. Following the piecemeal dismissal
of F. M. Cocke's appeal from the judgments
and from denial of his motion to vacate
same, as set forth above beginning at page
18, line 28, the Court [26] of Appeals by
order dated October 30, 1973 directed the
return of the record to Superior Court.
11. As mentioned above at page 19, line
17, on Buyers' Application in C-222472 the
trial court judge on October 31, 1973,
issued the Order and Writ of Assistance to
carry the unlawful alterations into effect
31
by ordering that the escrow be closed in
accordance therewith. Among other things,
the Order, prepared by Buyers' attorney,
authorized Minnesota Title to execute all
documents, including warranty deeds, in the
name of Francis M. Cocke. This would in-
clude the No. 2 spurious deed and the second
set of mortgage releases, mentioned above
at page 12, line 7. Among other things the
Writ, also prepared by Buyers' attorney,
directed the Sheriff of Maricopa County
to remove F. M. Cocke from possession of
the land upon compliance by Buyer with the
terms as altered by the Order and Writ and
as to be further altered by further court
order.
Vil.
WANT OF JURISDICTION OVER
THE SUBJECT MATTER
Each of the separate judgments in
C-222472 in favor of the three other par-
ties to the agreement, Joan H. Cocke, Trans-
america, and the Buyers, was and is void on
its face for lack of jurisdiction over the
subject matter, as was and is also each of
the orders of the appellate courts which
directly or indirectly upheld such judg-
ments.
In Hamilton v. Nakai (9th Cir., 1972)
453 F.2d 152, cert. den. (1972) 406 U.S.
945, 32 L.Ed.2d 332, the court said at 156:
The Supreme Court long ayo estab-
lished the principle that the power
of a court to afford a remedy must
be coextensive with its jurisdic-
tion over the subject matter:
Jurisdiction is defined to be the
power to hear and determine the
32
subject-matter in controversy
in the suit before the court,
and the rule is universal, that
if the power is conferred to
render the judgment or enter
the decree, it also includes
the power to enforce such judg-
ment or decree. (Citations
- omitted.) [27]
Process subsequent to judgment
is as essential to jurisdiction
as process antecedent to judg-
ment, else the judicial power
would be incomplete and entirely
inadequate to the purpose for e
which it was conferred by the
Constitution. (Emphasis added.) -
Riggs v. Johnson County, 1867,
73 (6 Wall.) U.S. 166, 187,
18 L.Ed 768.
In the words of Rule 12(b), if a court is
without the power or jurisdiction to grant
the relief sought, it is without jurisdic-
tion over the subject matter. Rule 12(b)
6 & 1, as amended, Federal Rules of Civil
Procedure, and 16 ARS Rules of Civil
Procedure.
d | 1. ALTERATION OF CONTRACTS
As briefly stated in Goodman v. Newzona
Investment Co. (1967) 101 Ariz. 470, 421
P.2d 318, another universal rule is:
It is not within the province or
power of the court to alter, revise,
modify, extend, rewrite or remake an
agreement. Its duty is confined to
the construction or interpretation
of the one which the parties have
made for themselves. Where the
intent of the parties is expressed
33
in clear and unambiguous language,
there is no need or room for con-
struction or interpretation and
a court may not resort thereto.
(Citations omitted)
It follows that where the relief sought
is the alteraticn of a valid provision of a
valid contract, the court is without juris-
diction over the subject matter.
2. INDISPENSABLE PARTIES
In Provident Tradesmen's Bank & Trust
Co. v. Patterson (Jan., 1968) 390 U.S. 102,
19 L.Ed 2d 936, 88 S. Ct. 733, in reviewing
Rule 19 as amended and the cases relied on
by the Court of Appeals in dismissing a
complaint in the absence of an indispensable
party, the court at page 951 of 19 L.ed 2d
quoted and approved Mallow v. Hinde, 12
Wheat. 193, 6 L.ed 599. In Mallow v. Hinde,
the court upheld dismissal of the complaint,
even though the absent party could not be
joined because not within the territorial
Jurisdiction of the lower court. The court
in that early case said: [28]
In this case, the complainants have
no rights separable from, and in-
dependent of, the rights of persons
not made parties. The rights of
those not before the Court lie at
the very foundation of the claim
of right by the plaintiffs, and a
final decision cannot be made be-
tween the parties litigant without
directly affecting and prejudicing
the rights of others not made par-
ties. . . .We do not put this case
upon the ground of jurisdiction,
but upon a much broader ground.
.We put it on the ground that
34
no Court can adjudicate directly
upon a person's right, without
the party being either actually
or constructively before the
Court.
Put another way, in order to grant by
judgment or decree the relief sought the
court must have power or jurisdiction over
all persons whose rights are to be affected
thereby; otherwise, execution could not
issue to carry the judgment or decree into
effect. Terrell v. Allison, 21 Wall. 289,
22 L.ed 634, was one of the cases stating
the rule pointed to in Hamilton v. Nakai,
supra, that the jurisdiction of a court
to enforce its decree is coextensive with
its jurisdiction to determine the rights of
the parties. In Terrell the court also
stated and followed the rule that a writ
of assistance can only issue against parties
whose rights have been determined in the
proceedings, and persons entering into
possession under them after suit commenced,
pendente lite, and are thus bound by the
decree.
In the words of Rule 12(b)1l, 6 & 7,
the court is left without jurisdiction over
the subject matter where left without the
power or jurisdiction to grant the relief
sought because of failure to join a party
indispensable under Rule 19.
3. WANT OF FINDINGS
In none of the proceedings, orders, or
judgments in the state trial court in
C-222472 was there any specification, de-
cision, finding of fact or conclusion of
law, under Rule 56(d) on summary judgments
or under Rule 52(a) on trials to the court,
on the issues of fact and law raised by
35
F. M. Cocke in his affirmative claims
against Joan H. Cocke, Buyers and Trans-
america, [29] or on the undisputed docu-
mentary evidence presented in support of
such claims.
In Rio Grande Irrigation & Colonization
Co. v. Gildersleeve, 174 U.S. 603, 19 S. Ct.
761, 43 L.ed 1103, the court said (L.ed, p.
1105):
As was said in Thompson v. Hatch,
3 Pick. 512: "A duly authorized
rule of court has the force of
law, and is binding upon the
court as well as upon parties to
an action, and cannot be dispensed
with to suit the circumstances of
any particular case. . . .The
courts may rescind or repeal their
rules, without doubt; or, in es-
tablishing them, may reserve the
exercise of discretion for par-
ticular cases. But the rule once
made without any such qualifica-
tion must be applied to all cases
which come within it, until it is
repealed by the authority which
made it."
In United States v. Aluminum Co. of
America, 2 F.R.D. 224 (1941), the District
Court S.D. New York said at page 231:
Rule 52 is incontrovertibly valid.
It is also mandatory; it is as
binding on this court as would be
a statute in the same terms. Rio
Grande Irrigation & C. Co. v.
Gildersleeve, 174 U.S. 603, 608,
609, 19 S. Ct. 761, 43 L.ed 1103;
Weil v. Neary, 278 U.S. 160, 165,
169, 170, 49 S. Ct. 144, 73 L.ed
243. See In re G. W. Giannini,
e a
36
Inc., 2 Cir., 90 F.2d 445, 447,
111 A.L.R. 1492.
So far I have refrained entirely
from going into numerous issues
made by the pleadings and have
not even mentioned the evidence
bearing on them.
For the reasons given, there-
fore, it seems to me (1) that
this court is without authority
to dispense with either the find-
ings or the conclusions contem-
plated by Rule 52 and (2) that,
in order to obey the rule, as
construed by the Supreme Court--
regardless of the contents of
the oral opinion--findings must
be made and conclusions stated
on all issues in the present
case.
In Baltimore & Ohio Railroad Company v.
United States, 298 U.S. 349, 80 L.ed 1209,
56 S. Ct. 797 (1936), supra, the court said
at L.ed. 1224:
The due process clause assures a
full hearing before the court or
other tribunal empowered to per-
form the judicial function involved.
That includes the right to intro-
duce evidence and have judicial
findings based upon it.
It follows that the separate judgments
entered in C-222472 in [30] favor of Joan
H. Cocke, Transamerica, and the Buyers were
wanting in findings and therefore wanting
in due process of law, and the court was
therefore without authority or jurisdiction
to grant the relief sought and purportedly
37
granted, and thus without jurisdiction over
the subject matter.
21 L.
962,
In Thompson v. Whitman, 85 U S. 457,
ed 897, the court said at L.ed 901:
Thus, in Elliott v. Peirsol, 1
Pet., 328, 340, it was held that
the Circuit Court of the United
States for the District of Ken-
tucky might question the juris-
diction of a county court of that
State to order a certificate of
acknowledgment to be corrected;
and for want of such jurisdic-
tion to regard the order as void.
Justice Trimble, delivering the
Opinion of this court in that
case, said: Where a court has
jurisdiction, it has a right to
decide every question which
occurs in the cause, and whether
its decision be correct or other-
wise, its judgment, until re-
versed, is regarded as binding
in every other court. But, it
it act without authority, its
judgments and orders are regard-
ed as nullities. They are not
voidable, but simply void.
In Arenas v. United States, 95 F. Supp.
affirmed (9th Cir. 1952) 197 F.2d 418,
the district court said, at page 970 of
F. Supp.:
In brief, the Court, in the prior
Arenas case, had no jurisdiction
of the subject matter which it
assumed to determine, the rela-
tionship of Arenas and others not
before the Court to Guadaloupe's
allotment as her heirs at law.
Such lack of jurisdiction appears
38
on the face of the judgment roll.
The judgment to that extent is,
therefore, void on its face,
(emphasis added)
In Pacific National Insurance Co. v.
Transport Insurance Co. (8th Cir., 1965),
341 F.2d 514, the court said at 516:
- « eif jurisdiction is lacking
the trial court should on its own
motion decline to proceed and if
the case is tried where jurisdic-
tion is lacking, the jurisdiction
of the appellate court on review
is limited to correcting the error
of the trial court in entertaining
the action. These principles are
fundamental and were recognized
and applied by us in the recent
case of Rock Island Millwork Co.
v. Hedges-Gough Lumber Co. (8th
Cir., 1964), 337 F.2d 24, 26, 27.
(emphasis added) [31]
For related rulings see Riley v. County
of Cochise (Div. 2), 10 Ariz. App. 55, 455
P.2d 1005 (1969), and Quiroz v. Alfaro (Div.
2), 18 Ariz. App. 173, 500 P.2d 1161 (1972),
Reh. den. Oct., 1972.
VIII.
WANT OF JURISDICTION IN C~-222472
1. ALTERATION OF CONTRACTS
Each of the three separate judgments
in C-222472 against F. M. Cocke was and is
void on the face of the judgment roll for
want of power or jurisdiction to grant the
r\
39
relief sought and purportedly granted,
which relief was alteration of the escrow
instructions:
(1) by the judgment in favor of Joan
H. Cocke, the deletion of the trustee
Bank's instructions, which included the
cancellation provisions;
(2) by the judgment in favor of Trans-
america, the deletion of at least the can-
cellation provisions, by the enforcement of
only paragraphs 8, 9 and 10;
(3) by the judgment in favor of Buyers,
the deletion of the conditions specified
in the first sentence of fine print para-
graph 14 as to compliance by Buyers and as
to the willingness of Transamerica to issue
its title insurance policy, and the deletion
of the cancellation provisions.
2. INDISPENSABLE PARTIES
Each of such judgments was and is void
on the face of the judgment roll for want
of power or jurisdiction to grant the re-
lief sought and purportedly granted, be-
cause of failure to join a party indispen-
sable under Rule 19:
(1) by the judgment in favor of Joan H.
Cocke, by the failure to join the trustee
Bank and the escrow agent in the alteration
of the terms of deposit of the trustee
Bank's deed, agreed to by them. [32]
(2) by the judgment in favor of Trans-
america, by the failure to join the Buyers,
indispensable in the determination of whether
the agreement was ended, so ending the rights
thereunder of Transamerica and of Buyers,
before the attorney fees were incurred;
40
(3) by the judgment in favor of Buyers,
by the failure to join Transamerica as title
insurer and holder of the deeds.
3. WANT OF FINDINGS
Each of such judgments was and is void
on the face of the judgment roll for want
of power or jurisdiction to grant the relief
sought and purportedly granted, because
such judgment was wanting in findings upon
decisive issues presented and upon undis-
puted documentary evidence presented which
was decisive of such issues, and therefore
wanting in due process of law. In none of
such judgments, nor in the trial court
judge's orders based thereon, was there any
finding as to the effect of the following:
(1) the cancellation provisions;
(2) the trustee Bank's written escrow
instructions adopting the cancellation pro-
visions;
(3) F. M. Cocke's March 5, 1969,
written notice of intent to cancel, and the
escrow agent's written notice thereof to
Buyers, notifying Buyers that they must
comply by March 19, 1969;
(4) Buyers' documents and written
demands received by the escrow agent on
March 7, 1969;
(5) the escrow agent's letter of
March 10, 1969, formally notifying Sellers
that by deposit of such documents and
demands Buyers had complied;
(6) the written agreement of November
27, 1972, between Transamerica and counsel
for Joan H. Cocke and for Buyers, that
Buyers had not yet complied; [33]
A
41
(7) the further agreement in January,
1973, between Transamerica and the Buyers,
evidenced by Buyers' letter of August 29,
1973, attached as Exhibit "K" to Buyers'
September 7, 1973, Application to the trial
court for the Writ of Assistance, that by
January, 1973, Buyers had not yet complied.
IX.
SETTLED PRINCIPLES
It is well settled that expressions by
a party to an escrow agreement, particularly
where there has been no change in title or
possession under its terms, as here, of mere
willingness and ability to comply are imma-
terial to the question of actual compliance.
28 Am Jur 2d, Escrow, §21, 22, 24; 30A CJS,
Escrows, §10(a) and 10(b).
As pointed out in Tucson Title In-
surance Co. v. D'‘'Ascoli, 94 Ariz. 230, 383
P.2d 119 (1963):
An escrow agent is held to strict
compliance with the terms of the
escrow agreement, and is liable
for all damages resulting from
any deviation.
It has long been settled that where the
conditions are fulfilled and the escrow
agent fails or refuses to deliver or return
the documents or money deposited into es-
crow, the remedy either in law or equity
lies against the escrow agent to obtain
the deposit, not against the other party
to obtain damages or to compel specific
performance of the escrow contract. The
other party may be joined in the action
against the escrow agent. 28 Am Jur 2d,
Escrow, §8, 17, 39; 30A CJS, Escrows, §15.
i\
42
In Old Wayne Mutual Life Assn. v.
McDonough, 204 U.S. 8, 51 L.ed 345, 27 S.Ct.
236, the court said, quoting Scott v. McNeal,
154 U.S. 34, 46, 38 L.ed 896, 901, 14 S. Ct.
1108:
No judgment of a court is due
process of law, if rendered with-
out the jurisdiction in the
court, ..-.-- [34]
The Arizona case Truax V.- Corrigan,
257 U.S. 312, 66 L.ed 254, 42 s. Ct. 124,
guoted and followed Barbier v. Connelly,
113 U.S. 27, 28 L.ed 923, S 8. Ct. 357-6
in which the court said at L.ed 264:
The 14th Amendment, in declaring
that no State "Shall deprive any
person of life, liberty or prop-
erty without due process of law,
nor deny to any person within its
jurisdiction the equal protection
of the laws," undoubtedly intend-
ed, .. -that all persons.
should have like access to the
courts of the country for the
protection of their persons and
property, the prevention and re-
dress of wrongs and the enforce-
ment of contracts;
In Shelly v. Kraemer, 334 U.S. 1, 92
L.ed 1161, 68 S. Ct. 836, the court held
that the action of state courts and of
judicial officers in their official capaci-
ties, even though taken for the enforcement
of private agreements, is state action with-
in the meaning of the equal protection
clause, and that where the coercive power
of state govenment is used by its courts to
deny rights subject to the protection of
the 14th Amendment, the action of the state
courts cannot stand.
.
43
In Wells Fargo & Company v. Oscar G.
Taylor, 254 U.S. 175, 65 L.ed 205, 41 S. Ct.
93, the court said, in discussing the pro-
vision in the Judicial Code that a federal
court shall not grant an injunction stay-
ing proceedings in a state court, except in
bankruptcy cases, at L.ed 211:
-it has come to be settled by
repeated decisions and in actual
practice that, where the elements
of Federal and equity jurisdiction
are present, the provision does not
prevent the Federal courts.
from depriving a party, by means of
an injunction, of the benefit of a
judgment obtained in a state court
in circumstances where its enforce-
ment will be contrary to recognized
principles of equity and the stand-
ards of good conscience.
In Northern Pacific Ry. Co. v. Kurtzman,
County Treasurer, 82 F. 241, the court said:
I recognize the absolute correct-
ness of the proposition that the
Federal courts are forbidden by
express provisions in the law
enacted by congress [35] to
issue injunctions to stay pro-
ceedings in any court of a state,
but that principle is not appli-
cable where the suit in the Fed-
eral court is a direct attack upon
a judgment rendered in a state
court for the purpose of nullif-
ing such judgment, upon the ground
that the same was obtained by
fraud, or because the court in
which such judgment appears of
record had no jurisdiction to
render the same. In the exercise
of their general equity powers,
g
44
the circuit courts of the United
States have always been free to
grant relief of this nature in
cases coming within their juris-
diction. Galpin v. Page, 18 Wall.
351-375; Pennoyer v. Neff. 95 U.S.
714-748; Arrowsmith v. Gleason,
129 U.S. 86-101, 9 Sup. Ct. 237;
Marshall v. Holmes, 141 U.S. 589-
601, 12 Sup. Ct. 62. The bill of
complaint attacks the judgment of
the superior court on the ground
that it acted without jurisdic-
tion in rendering the judgments.
In Mitchum v. Foster, 407 U.S. 225, 32
L.Ed.2d 705, 92 S. Ct. 2151 (1972), the
court held that:
Provision of Civil Rights Act
authorizing a suit in equity to
redress deprivation under color
of state law of any rights, priv-
ileges, or immunities secured by
Constitution is within "expressly
authorized" exception of federal
anti-injunction statute prohibit-
ing a federal court from enjoining
a state court proceeding except as
expressly authorized by act of
Congress. 28 U.S.C.A. §2283; 42
U.S.C.A. §1983.
At page 2161 of S. Ct. the court said:
It is clear from the legislative
debates surrounding passage of
§1983's predecessor that the Act
was intended to enforce the pro-
visions of the Fourteenth Amend-
ment “against state action, whether
that action be executive, legisla-
tive, or judicial." Ex parte
Virginia, 100 U.S. 339, 346, 25
45
L.Ed 676 (emphasis supplied). Pro-
ponents of the legislation noted
that state courts were being used
to harass and injure individuals,
either because the state courts
were powerless to stop deprivations
or were in league with those who
were bent upon abrogation of
federally protected rights.
And at page 2162:
§1983 was thus a product of a
vast transformation from the con-
cepts of federalism that had pre-
vailed in the late 18th century
when the anti-injunction statute
was enacted. The very purpose of
§1983 was to interpose the federal
courts between the States and the
people, as guardians of the people's
federal rights--to protect the
people from unconstitutional action
under color of state law, “whether
that action be executive, legisla-
tive or judicial." Ex parte
Virginia, 100 U.S. 33% 346 25 L.ed.
676. In carrying out that [36]
purpose, Congress plainly author-
ized the federal courts to issue
injunctions in §1983 actions, by
expressly authorizing a "suit in
equity” as one of the means of
redress.
In Lucarell v. McNair (6th Cir., Jan.
1972), 453 F.2d 836, the court said:
Turning to the question of McNair's
asserted immunity, it is true that
as Referee and Administrative
Officer of the Juvenile Court of
Trumbull County, McNair was
46
entitled to the full reach of the
doctrine of judicial or, in this
case, quasi-judicial immunity, and
that the doctrine is applicable
to actions instituted pursuant to
§1983. Nevertheless, the doctrine
is not without bounds. Some time
ago the Sixth Circuit stated its
; views as to the limits of the pro-
tection thus afforded. In Manning
v. Ketcham, 58 F.2d 948 (6th Cir.
1932), we indicated the view that
a judge loses all immunity when he
acts in absence of all jurisdic-
tion. This rule was discussed at
some length in the more recent case
of Lynch v. Johnson, 420 F.2d 818
(6th Cir. 1970). See also Bradley
v. Fisher, 13 Wall. 335, 80 U.S.
335, 20 L.Ed. 646 (1871).
In Hoffman v. Halden (9th Cir. 1959),
268 F.2d 280, the court said at 296:
In a Civil Rights conspiracy case,
the injury and damage must flow
from the overt acts. . . .In the
usual case, the order of the court
would be the proximate cause and
the various preliminary steps
would be remote causes of any
injury.
and at page 298:
The law is clear that when two or
more persons conspire to violate
the civil rights of an individual,
acting under color of state law,
if one or more of the conspira-
tors is a state officer, then the
mere fact that certain of the other
conspirators are not state officers
iN
47
constitutes no defense to any
of them under the Civil Rights
statutes.
Hoffman at page 299 in discussing the immun-
ity of judges cites Bradley v. Fisher, and
goes on to say:
335,
351,
F.2d
A broad holding that all state
officials enjoyed immunity would
be an improper approach. If
courts held that all state offi-
cials had immunity from liability
under Civil Rights actions for
all acts done or committed within
the ostensible scope of their
authority, this would practically
constitute a judicial repeal of
the Civil Rights Act. Repeal is
the responsibility of Congress,
not the courts. [37]
In Bradley v. Fisher, 13 Wall. (U.S.)
20 L.ed 646, the court said, at pages
352 of 13 Wallace:
A distinction must be here observed
between excess of jurisdiction and
the clear absence of all jurisdic-
tion over the subject-matter.
Where there is clearly no juris-
diction over the subject-matter,
any authority exercised is usurped
authority, and for the exercise
of such authority, when the want
of jurisdiction is known to the
judge, no excuse is permissible.
Cohen v. Norris (9th Cir. 1962) 300
24, the court said at page 29:
In our view Monroe v. Pape an-
nouncesthe rule that an allega-
tion of a purpose to discriminate
ie |
48
or a purpose to deprive one of any
federal right, is not essential
to the statement of a claim under
§1983 predicated on an alleged
violation of the due process
clause of the Fourteenth Amend-
ment. It is accordingly neces-
sary for us to overrule in this
respect the contrary holdings
in our earlier decisions in Agnew
v. City of Compton and Hoffman v.
Halden, and to disapprove the con-
trary statement made by way of
dictum in Walker v. Bank of
America.
§44-1211 (14 ARS, 1967) provides:
A person is guilty of a misdemeanor
who:
l. Is a party to any fraudulent
conveyance of any lands, tene-
ments or hereditaments, goods or
chattels or any right or interest
issuing therefrom, had, made or
contrived with intent to deceive
and defraud others, or to defeat,
hinder or delay creditors or
others of their just debts,
damages or demands.
2. Is a party to any bond, action
or judgment, or execution, con-
tract or conveyance had, made or
contrived with intent to deceive
and defraud others, or to defeat,
hinder or delay creditors or
others of their just debts, dam-
ages or demands.
3. Is a party as provided in para-
graph 1 or paragraph 2 of this
section, and
-*%
49
(a) At any time wittingly and
willingly puts in, uses, avoOws,
maintains, justifies or defends
such transaction as true, and had
or made in good faith, or
(b) Upon good consideration aliens,
assigns or sells any of such lands
or goods or other things which have
been so conveyed to him. [38]
PRAYER FOR RELIEF
Plaintiff respectfully prays this Court
to enter an order:
1. Granting a temporary restrain-
ing order or preliminary injunc-
tion on application of plaintiff
if necessary to preserve the
status quo as to title or pos~
session;
2. Setting aside each of the three
separate judgments, in favor of
Joan H. Cocke, in favor of Trans-
america, and in favor of Buyers
James Stewart Company and M. Seth
Horne and Maurine D. Horne, for
want of jurisdiction in the
court;
3. Granting plaintiff a declaratory
judgment pursuant to the provis-
ions of 28 U.S.C. 2201 declaring
his rights and defendants’ corre-
sponding duties and liabilities
arising under’ the transaction set
forth in the complaint herein;
4. Ordering the return of Sellers'
three deeds to the parties who
executed same;
50
Ordering the return of the $40,000
note and mortgage to plaintiff on
such terms as be deemed just and
equitable;
By way of quieting title, estab-
lishingt plaintiff's estate in
Parcel 2 as described in his deed
thereto, and the estate of plain-
tiff and his co-tenant First
National Bank of Arizona, as
trustee, in their undivided half-
interests in Parcel 1, as de-
scribed in plaintiff's deed to
his half-interest in same, and
barring and forever estopping
defendants James Stewart Company,
M. Seth Horne and Maurine D.
Horne from having or claiming
any right or title to the pre-
mises, Claimed by them as set
forth in this [39] Complaint,
adverse to plaintiff or the
trustee Bank, all as provided by
ARS §12-1101, 12-1102 as amended,
12-1103 as amended, and 12-1104;
Granting plaintiff damages sev-
erally and jointly from defend-
ants Cantor, Jacobson, Donofrio,
Tanner, Kelly, Schneider, Whitney,
Gillenwater, Transamerica, Minne-
sota Title, James Stewart Company
and M. Seth Horne and Maurine D.
Horne, and Joan H. Cocke, pursu~
ant to 28 U.S.C. §1343, 42 U.S.C.
§1981, 1982, 1983, 1985, 1986 and
1988 and calculated as follows:
a. $50,000 lost by plaintiff
by delay in making higher
and better use of his land,
by reason of defendants'
misconduct in C-222472;
7%
-
51
b. $50,000 in damages for in-
fringement of his civil rights
by defendants’ misconduct in
C-222472;
c. $50,000 in punitive, exemplary
damages by reason of defendants’
misconduct in C-222472.
d. Such other and further relief
as the Court deems just and
equitable.
/s/ FRANCIS M. COCKE
1320 South Priest Road
Tempe, Arizona 85281
STATE OF ARIZONA )
: SS-
County of Maricopa )
F. M. COCKE being first duly sworn, on
oath deposes and says:
That as plaintiff he has written the
foregoing complaint and knows the contents
thereof, and that the matters and things [40]
stated therein are true of his own knowl-
edge, except as to those matters therein
specifically stated to be upon information
and belief, and as to those matters he be-
lieves them to be true.
/s/ FRANCIS M. COCKE
FX
[41] FRANCIS M. COCKL, Plaintiff
1320 South Priest Road
Tempe, Arizona 85281
(602) 967-9734
Ir propria persona
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
FRANCIS M. COCKE,
Plaintiff,
vs.
IRWIN S. CANTOR, et al.,
Defendants.
ee eee eee eee
COMPLAINT FOR RELIEF FROM
STATE COURT JUDGMENTS AND
ORDERS ENTERED WITHOUT
JURISDICTION, AND FOR
INJUNCTION AND DAMAGES
EXHIBITS
53
[42] EXHIBITS
Page
A Agreement and trustee Bank's
instructions 2
B F. M. Cocke's deeds to Parcel
2 and his half-interest in
Parcel l 2
Cc F. M. Cocke's notice of intent
| to cancel, and the escrow agent's
notice thereof to Buyers 9
D Buyers’ letter of new instruc-
tions and demands, and the escrow
agent's notice that Buyers had
done everything required to close
the escrow 9
E The November 27, 1972, agreement
between Hubert Kelly for Buyers,
Loretta Whitney for Joan H.
Cocke, and Transamerica, and
Buyers' letter of August 29,
1973, to Transamerica 14
F The three separate judgments,
of November 10, 1970, in favor
of Transamerica, of November 19,
1970, in favor of Joan H. Cocke,
and of September 27, 1972, in
favor of Buyers 15
G Buyers' Application For Writ Of
Assistance, etc., the trial court
judge's Order of October 31, 1973,
granting the Writ, and the Writ
itself 20
[43] AGRELMEN'
THIS AGREEMENT made and entered into
this 9th day of October, 1968, between
JAMES STEWART COMPANY, Buyer, and JOAN H.
COCKE and FRANCIS M. COCKE, Sellers, and
together with that certain Escrow Agreement
No. 02013111-7 entered into with Trans-
america Title Insurance Company, signed by
the same parties, a copy of which is
attached hereto and by reference made a
oart hereof, constitutes the full agree-
ment between the parties for the purchase
and sale of approximately 124 acres of land,
being that part of the SE 1/4 of Section
20, Township 1 North, Range 4 East,
G&SRB&M, lying north of the right-of-way
of the Jenkins Ditch, EXCEPT a parcel of
3-5 acres containing certain improvements
of the Seller Francis M. Cocke situated at
the northeast corner of the property, north
of the George Ditch.
l. Sellers agree to cooperate with
Buyer in altering the boundaries of any of
the various 5-acre releases to fit the needs
of the Buyer, and Buyer agrees that releases
shall not impair access to unreleased por-
tions of the land.
2. Seller agrees within two years to
remove the farm sheds, barns, and unhoused |
farm implements, except for stables for
three horses, from the 3-5 acres of land
reserved from the sale.
3. On the parcel reserved from the
sale, Seller agrees to grant easements
before close of escrow for street and
utility purposes, and to improve said
easement by construction and paving at his
cost, when streets are constructed and
paved on the northeastern portion of the
property for a half street on 13th Street
55
and a half street along the north side of
the George Ditch.
4. In the event of any sale outside
of Sellers' family, Sellers agree that
Buyer shall have the right of first refusal
(unless taken by the State of Arizona) to
purchase the 11.2 acre triangle and the
12.9 acre "frog" in the south 100 acres of
the SW 1/4 of Section 20, Township l North,
Range 4 East, being Sellers’ lands remain-
ing after a portion of said 100 acres was
taken by said State, and also to purchase
the 3-5 acre parcel at the Northeast corner
of property, reserved to Seller.
5. Buyer shall have the right to grant
easements for road and utility purposes
on the unreleased land. Easements for such
streets [44] shall not however reduce
the area of land on which release prices are
computed.
6. This Agreement shall enure to the
benefit of the parties hereto, their heirs,
administrators, executors, successors and
assigns.
IN WITNESS WHEREOF, the parties have
executed this Agreement the date and day
first above written.
JAMES STEWART COMPANY
By
/s/ Wallace O. Tanner
BUYER Vice Pres.
s/Francis M. Cocke
FRANCIS M. COCKE
s/ Joan H. Cocke
JOAN H. COCKE
SELLERS
56
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this the 9th day of October, 1968,
before me, the undersigned officer, per-
sonally appeared FRANCIS M. COCKE, known
to me to be the person whose name is sub-
scribed to the within instrument and
acknowledged that he executed the same for
the purpose therein contained.
IN WITNESS WHEREOF, I hereunto set
my hand and official seal.
s/ Mrs. Cecelia J. Burton
Notary Public
My commission expires:
Dec. 1, 1969
STATE OF ARIZONA )
) ss.
County of Maricopa )
On this the 9th day of October, 1968,
before me, the undersigned officer, per-
sonally appeared JOAN H. COCKE, known to
me to be the person whose name is subscribed
to the within instrument and acknowledged
that she executed the same for the purpose
therein contained.
IN WITNESS WHEREOF, I hereunto set my
hand and official seal.
s/ Mrs Cecelia J. Burton
Notary Public
My commission expires:
Dec. 1, 1969
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58
(RetypedFine Print Escrow Instructions)
(46)
SELLER:
1. Will deliver to Escrow Agent a
deed of the property from Seller to Buyer
to be held by Escrow Agent until the terms
hereof have been performed, at which time
it shall deliver said deed to Buyer.
SELLER AND BUYER:
2. Will deliver to Escrow Agent all
documents, pay to Escrow Agent all sums and
do or cause to be done all other things
necessary, in the sole judgment of Escrow
Agent, to enable it to comply herewith and
to enable Transamerica Title Insurance
Company to issue any title insurance
policy provided for herein.
3. Should these instructions contem-
plate a transfer of an interest in an agree-
ment for sale, Seller and Buyer will deliver
to Escrow Agent such documents as Escrow
Agent may, in its sole judgment, require
for the benefit of any party to said
agreement.
4. Authorize Escrow Agent to pay,
from any funds held by it for their respec-
tive credit hereunder, all amounts necessary
to procure the delivery of such documents
and to pay, on their behalf, all charges
and obligations payable by them respec-
tively, as specified herein.
5. Will each pay to Escrow Agent,
upon demand, all charges payable by thein
respectively, as provided herein.
6. Authorize Escrow Agent to execute
on their behalf, form assignments or other-
59
wise order changes in any insurance called
for herein other than title insurance and
forward the policies to insurer's agent
with the request thatthe insurer consent
to such transfer, attach loss payable
clause or make such other additions or
corrections as may be specifically required
herein, and that said agent thereafter
return such policies to Escrow Agent or
to the parties entitled thereto.
7. Direct Escrow Agent to comply
herewith within the time limits provided
herein for compliance, or as soon. there-
after as possible unless a demand for
cancellation has been made on Escrow Agent
as herein provided.
8. Authorize Escrow Agent, in the
event any demand is made upon it concern-
ing these instructions or the escrow, at
its election, to hold any money and docu-
ments deposited hereunder until an action
shall be brought in a court of competent
jurisdiction to determine the rights of
Seller and Buyer or to interplead said
parties by an action brought in any such
court. Deposit by Escrow Agent of said
documents and funds, after deducting there-
from its charges and its expenses and
attorney's fees incurred in connection
with any such court action, shall relieve
Escrow Agent of all further liability and
responsibility.
9. Wiil indemnify and save harmless
Escrow Agent against all costs, damages,
attorney's fees, expenses and liabilities,
wnich it may incur or sustain in connection
with these instructions or the escrow or
any court action arising therefrom and will
pay the same upon demand.
-%
60
47] 10. Grant to Escrow Agent a lien
upon and authority to reimburse itself:
(1) for its charges and for any damages or
expenses which it may incur or sustain in
connection herewith from all of the right,
title and interest of either the Seller or
the Buyer in all of the documents and money
deposited hereunder or otherwise held by
Escrow Agent: (2) for any other indebted-
ness due Escrow Agent from Buyer from all
right, title and interest of Buyer or for
any other indebtedness due Escrow Agent
from Seller from all right, title and interest
of Seller in all of the documents and money
deposited hereunder.
ll. Directthat no notice, demand or
change in these instructions shall be of
effect unless given in writing and that these
instructions, and any subsequent instruc-
tions, given mutually by Seller and Buyer
to Escrow Agent in connection herewith shall
constitute the complete escrow instructions,
notwithstanding any agreement which Seller
and Buyer may have concerning the property.
12. Direct that all money payable
hereunder be paid to Escrow Agent. Dis-
bursement of any funds may be made by check
of Escrow Agent. Escrow Agent shall be
under no obligation to disburse any funds
represented by check or draft, and no
check or draft shall be payment to Escrow
Agent in compliance with any of the require-
ments hereof, until it 1s advised by the
bank in which deposited that such check
or draft has been honored, unless Escrow
Agent specifically agrees in writing to
accept liability for the sufficiency
thereof. Income, if any, earned by money
deposited herein shall be retained by
Escrow Agent as additional compensation.
61
13. Authorize Escrow Agent to act
upon any statement furnished by the holder
or payee, or a collection agent for the
holder or payee, of any lien on or charge
or assessment in connection with the pro-
perty, concerning the amount of such charge
or assessment or the amount secured by
such lien without liability or respon-
Sibility for the accuracy of such statement.
Any transfer fee, statement fee, or
service fee charged by any collection
agent, holder or payee shall be paid by
the Seller herein unless otherwise specified.
14. Direct that when these instruc-
tions have been complied with and Trans-
america Title Insurance Company is willing
to issue its title insurance policy, as
hereinafter provided, and when Escrow
Agent's charges have been paid, it shall
deliver, by filing for record in the
appropriate public office, all necessary
documents required to be filed or recorded,
instructing the County Recorder's Office
to mail any documents recorded therein to
the parties entitled thereto at the ad-
dresses given herein, at which time Escrow
Agent shall disburse all funds paid to it
hereunder, as provided herein. Any other
papers or documents may, at the option of
Escrow Agent, be delivered to the party
entitled thereto by mailing in the manner
herein provided for mailing of “Notices,
Demands or Declarations". Escrow Agent may
destroy its file and contents therein after
three years from close of escrow or termi-
nation of collection, as appropriate. No
action against Escrow Agent arising under
these instructions shall be commenced more
than three years from the date the cause of
action accrues.
62
[444 15. Agree that the employment of
Transamerica Title Insurance Company, as
Escrow Agent, shall not affect any rights
to which it may be subrogated under the
terms of any title insurance policy issued
pursuant to the provision thereof.
CANCELLATION :
16. If either party elects to cancel
these instructions because of the failure
of the other party to comply with any of
the terms hereof within the time limits
provided herein, said party so electing to
cancel shall deliver to Escrow Agent a
written notice to the other party and Escrow
Agent demanding that said other party comply
with the terms hereof within thirteen days
from the receipt of said notice by Escrow
Agent or that these instructions shall
thereupon become cancelled.
17. When such written notice is
delivered to Escrow Agent by the party so
electing to cancel, Escrow Agent shall
within three days thereafter send a copy of
said notice to the other party in the manner
provided herein for the mailing of Notices,
Demands or Declarations.
18. In the event said other party
shall fail within said thirteen-day period
to comply with all the terms hereof, these
instructions shall become cancelled and
Escrow Agent is thereupon authorized:
19. First: To pay to the party
electing to cancel, any
earnest money deposited
hereunder by said other
party, after deducting
any charges;
63
20. Second: To pay to said other
party, any other money
deposited hereunder by
said other party, after
deducting any charges
remaining unpaid;
21. Third: To pay to the party
electing to cancel, any
money deposited by said
party, after deducting any
charges remaining unpaid;
22. Fourth: To return all documents
deposited hereunder to
the party who delivered the
same except documents
executed by both Seller
and Buyer, which shall be
marked "cancelled" and
retained in the files of
Escrow Agent.
23. If, under these instructions, a
commission is to be paid to a real estate
agent, then, notwithstanding any conflict-
ing provisions herein contained:
(a) The party obligated to pay the
commission shall not acquiesce in any
mutual cancellation of these instruc-
tions without having first delivered
said real estate agents written consent
to Escrow Agent.
(b) Upon cancellation of these instruc-
tions for any reason, should any funds,
after deduct ng Escrow Agent's charges,
become payable to a party obligated
hereunder to pay said commission, then
Escrow Agent shall pay to the real
estate agent therefrom, a sum equal to
one-half of the earnest money deposited
64
by any other party and payable to
the party so obligated, but not more
than the full amount of such com-
mission.
A9} 24. If Escrow Agent is unable or
unwilling to comply with these instructions
for any reason other than cancellation as
hereinbefore provided, or if Transamerica
Title Insurance Company is unwilling to
issue any title insurance policy provided
for herein, Escrow Agent is directed to pay
the charges payable by Buyer from any money
deposited hereunder by Buyer, paying the
balance then remaining to Buyer, and to pay
the charges payable by Seller from any money
deposited hereunder by Seller, paying the
balance then remaining to Seller, and all
documents executed by one party only on
deposit with Escrow Agent shall be returned
to the parties who executed said documents.
Mutually executed instruments shall be
retained by Escrow Agent.
25. Notwithstanding any of the pro-
visions herein, Escrow Agent is hereby
instructed that any payments of money due
under a cancellation notice shall not be
accepted unless said payment is tendered
in cash, certified or cashier's check, or
money order. Personal checks are not to be
accepted as payment in these circumstances
unless approved by the party seeking can-
cellation.
AGREEMENT FOR SALE OF REAL PROPERTY:
26. Should any part of the amount
provided to be paid by Buyer be evidenced
by an agreement for sale, an executed copy
thereof, the deed herein provided to be
furnished by Seller, and such other docu-
ments as Escrow Agent may, in its sole
65 .
judgment, require will be delivered by
Seller and Buyer to Escrow Agent which
shall record said agreement and hold said
deed until such time as all sums due for
the account of Seller under said agreement
for sale have been paid and the instruc-
tions herein have been met, at which time
Escrow Agent shall deliver said deed to
Buyer. In the event of a default in the
agreement terms, by Buyer, Seller and Buyer
hereunder, their heirs, successors, and
assigns, agree that Escrow Agent may for-
feit all right, title and interest of Buyer
in said agreement and real property by
recordation of Affidavit of Completion of
Forfeiture in accordance with procedures
agreed by the parties in Escrow Instructions.
27. If Buyer is in default under such
agreement, Seller may either elect to bring
an action against Buyer for specific per-
formance of agreement or enforce a for-
feiture thereof in any lawful manner,
including, but not limited to, forfeiture
by notice as hereinafter provided. For-
feiture may be enforced only after the
expiration of the following periods after
such default; where Buyer has paid on the
purchase price: Less than 20% - 30 days;
20% or more, but less than 30% - 60 days;
30% or more, but less than 50% - 120 days;
50% or more - 9 months. In computing said
percentages, the amount of any agreement
for sale or mortgage agreed to be paid by
Buyer shall be treated as payment only to
the extent of principal actually paid there-
on by Buyer.
28. If Selier elects to forfeit such
agreement by notice, Seller shall do so
through Escrow Agent by delivering to Escrow
Agent a written Declaration of Forfeiture
directed to Buyer together with Escrow
66
Agent's established fee for services
rendered in connection with forfeitures.
Said fee of Escrow Agent shall be the
Buyer's obligation, shall be added to the
contract balance owed by Buyer to Seller,
shall be a lien upon the subject property
and shall be collected by Escrow Agent [50]
from Buyer in order for Buyer to avoid the
forfeiture. Escrow Agent shall, within
three days thereafter, send a copy of said
declaration to Buyer in the manner provided
herein for the mailing of Notices, Demands
or Declarations. If Buyer fails to comply
with the terms of such agreement to the
date of such compliance before the expira-
tion of ten days from the date said copy
was deposited in the United States mail
as herein provided, Escrow Agent is autho-
rized to deliver to Seller the documents
and money deposited under these instructions
or under such agreement and file of record
an Affidavit of Completion of Forfeiture
executed by Escrow Agent, which affidavit
shall be binding on all parties, their
heirs, successors and assigns. All funds
paid to Escrow Agent in compliance with
the demands of any forfeiture notice served
in connection with agreements for sale,
shall be in the form of cash, cashiers check,
Or money order only. Personal checks will
: not be accepted. Said funds shall be paid
. to the office of Transamerica Title Insurance
Company where escrow is being held. In the
event any fee which is Buyer's obligation
is not paid, said fee, at Escrow Agent's
option, shall be deducted from funds due
Seller and added to the contract balance
owed Seller by Buyer. Seller may declare
Buyer in default for nonpayment of said
fees when due and enforce a forfeiture
of said contract pursuant to the provisions
contained herein.
67
29. In addition to the regular escrow
charges made by Escrow Agent, Seller and
Buyer will pay to Escrow Agent for its
services in receiving, accounting for,
remitting funds, terminating the account
and in performing services in connection
with the transmission of any Notices, Demand
or Declaration required to be transmitted
under the terms of the Escrow Instructions,
or the agreement for sale and implementing
the action contemplated or prescribed by
any such Notice, Demand or Declaration, such
reasonable fees as Escrow Agent has estab-
lished for the various services to be per-
formed. Said fees shall be paid one-half
by Buyer and one-half by Seller unless
otherwise specified herein. We reserve the
right to make additional charges in unusual
circumstances. All fees will be based on
the rate in effect as of the date the
various services are performed.
ACCOUNTING SERVICES:
30. Seller or Mortgagee as the payee
of future installments which may be provided
for in these instructions agrees to refund
any remittance made by Escrow Agent in
reliance on a check which is subsequently
dishonored.
31. If a deferred balance is repre-
sented by a note secured by mortgage, the
Mortgagee agrees to deposit a satisfaction
of said mortgage with Escrow Agent for
delivery to Mortgagor upon full payment of
the note. The Mortgagee further agrees
that if upon payment of said note in full
you have not for any reason been furnished
with a release executed by Mortgagee, you
are authorized as Mortgagee's agent to
mark the Promissory Note paid in full and
cancelled and to execute and record a
satisfaction of said mortgage.
68
32. In the event a note and mortgage
is deposited with Escrow Agent for collec-
tion hereunder, the Mortgagee shall have
the right to withdraw the note and mortgage
or any modification thereof at any time
without prior notice on payment of fees
due Escrow Agent.
(5 33. Time is of the essence of any
agreement to pay or perform hereunder which
agreement shall remain unpaid or unperformed
as Of close of escrow. No payment by Buyer
or Mortgagor of such amounts shall be
received or receipted for by Escrow Agent
unless all amounts due as of the date of
compliance are paid unless and until writ-
ten authority therefor has been delivered
to Escrow Agent by the payee of said amount.
34. No transfer or assignment of any
rights hereunder shall be made by anyone
having an interest herein unless made in
such manner and accompanied by such instru-
ments and fees as shall be required by the
Escrow Agent.
NOTICES, DEMANDS OR DECLARATIONS:
35. The respective addresses of Seller
and Buyer as set forth herein or the last
notice of change thereof filed with Escrow
Agent by the respective parties, shall be
used by Escrow Agent in mailing any Notice,
Demand or Declaration to either party.
36. If, for any reason, a Notice,
Demand or Declaration of any kind is to be
given by either party to the other party,
said Notice, Demand or Declaration shall
be in writing, signed by the party giving
the Notice or making the Demand or Declara-
tion and directed to the other party and
shall be filed with Escrow Agent. Escrow
y
69
Agent shall within three days after
receipt of said Notice, Demand or Declara-
tion, send it to the party to whom it is
directed by enclosing a copy of said
instrument in an envelope addressed to said
party at the last address which said party
shall have filed with Escrow Agent, or,
if no address has been so filed, to said
party, in care of General Delivery, at
the City in which the office of Escrow
Agent is located as shown on the first page
of these instructions, and depositing said
envelope with proper postage affixed thereto
in the United States mail.
37. The mailing of any such instru-
ment by Escrow Agent in the manner herein
provided shall constitute notice of the
contents of such instrument to the party
to whom the instrument is directed as of
the date of such mailing and no further
notice thereof shall be required.
DEFINITIONS:
38. he word "charges" as used herein,
refers to all charges and advances made and
obligations incurred by Escrow Agent in
connection herewith, and all charges of
Transamerica Title Insurance Company in
connection with the issuance of its title
insurance policy or the cancellation of any
order therefor.
39. The word "property" as used herein,
refers to the real property described in
and which is the subject of these escrow
instructions.
40. The word "party" as used herein,
refers to Seller or Buyer as the case may
be.
ad
70
41. The phrase "Seller and Buyer”
as used herein, refers to Seller and Buyer
both jointly and severally unless other-
wise specified.
524 42. The day provided herein within
which compliance with any requirement must
be met shall end at the close of the then
regularly established public business hours
of Escrow Agent for such day, provided,
should Escrow Agent be closed during any
of said business hours on said day such
requirement may be met on the next succeed-
ing day on which Escrow Agent is open for
business throughout said business hours.
43. "Close of Escrow" shall mean the
date of the policy of title insurance to
be issued herein.
TITLE INSURANCE:
44. The title insurance provided for
herein, shall be subject to the conditions
of and evidenced by the regular form of
Owner's Title insurance policy of Trans-
america Title Insurance Company with a limit
of liability equal to the total amount to
be paid by Buyer. Said policy, upon issuance,
shall insure Buyer against loss by reason of
defects in the title to the property on the
date of filing for record of the documents
as provided herein subject to such of the
following exceptions as may be applicable
in addition to the regular printed excep-
tions contained in Schedule "B" thereof:
(a) Taxes and assessments payable by
Buyer as set forth herein;
(b) Building and other restrictive
covenants to which property is
subject;
71
(c) Easements and rights of way for
roadways, canals, laterals, ditches
and public utilities over and across
the property;
(d) Mortgages referred to herein;
(e) Rights of parties under the
agreement for sale referred to herein;
(f) Rights of Buyer under the agree-
ment for sale provided for herein;
(g) Any liens or encumbrances affect-
ing said property suffered or incurred
through any act or fault of the party
insured or anyone deriving an interest
in said property by or through the said
party insured;
(h) Liabilities and obligations imposed
on the land by inclusion in any water
Or irrigation district:
(i) Reservations and Exceptions in
Patents.
45. NOTE: There are some matters
which Transamerica Title Insurance Company
does not attempt to investigate or determine
and for which it assumes no liability. While
not a complete list, experience has shown
that among these, the following deserve
your particular consideration:
(a) Unrecorded mechanic's and
material men's liens;
(b) Current personal property taxes;
53 (c) Utility charges, such as electric,
gas, water and sewer.
72
(d) Charges for irrigation water
and power;
(ec) Boundary lines, location of
improvements and possession;
(f) Compliance with limitations
on use of the property, such as
zoning and building ordinances and
building and other restrictions;
(g) Premiums for fire insurance
policies provided for herein. (It
is your obligation to determine that
such premiums are paid and that such
policies are in effect.)
(h) Reservations and exceptions in
Patents, such, for example, as oil
or mineral reservations. [54]
73
SCHEDULE "A" - To be attached and made a
part of Escrow #02013111-7
BUYER to take possession at close of
Escrow.
It is understood and agreed between
Seller and Buyer that there is an exist-
ing mortgage on Parcel 2 in favor of
Federal Land Bank which will remain the
obligation of the Seller of Parcel 2.
Seller agrees to have this mortgage re-
leased before or at the time Buyer pays
off the deferred balance due under said
James Stewart Company - Cocke mortgage.
Seller further agrees to provide Buyer
with Partial Releases on 5-acre tracts as
agreed to in the James Stewart Company -
Cocke mortgage.
The terms of the purchase money
mortgage are as follows: $64,000.00 on
January 2, 1969, plus interest on unpaid
balance from date of closing and the balance
to be paid over a period of not more than
15 years in equal annual payments, includ-
ing interest on all unpaid principal at
the rate of six percent (6%) per annum
from January 2, 1969, payable at the same
time and including the regular annual
payments, with the first such equal pay-
ment being due January 2, 1970. Buyer
has the right and privilege to make addi-
tional payments at any time after January 2,
1969.
Seller agrees to execute and deliver
to the escrow agent to be held in escrow,
partial releases of mortgagesin increments
of 5-acre parcels, and the property may be
released in the manner hereafter provided
upon the following formula: $6,000.00
applied upon the principal for each acre
74
released paid upon the deferred balance
due on the mortgage hereunder; EXCEPT that
the property bordering on Priest Road a
distance in depth of 600 feet shall bear
a release price of $8,000.00 per gross
acre. All releases are to be released in
a contiguous manner, and the descriptions
of said releases are to be furnished by
a registered engineer. It is agreed
between Seller and Buyer that the annual
principal installments (EXCEPT the down
payment of $64,000.00) shall apply toward
the release price and the release prices
paid for the release of land shall apply
toward the next annual installment of
principal. Except for annual payments of
principal and interest, no interest charge
shall be added to the release prices when
Buyer obtains releases of lands hereunder.
These instructions and that certain
Sales Agreement entered into October 9,
1968, between Buyer and Sellers constitute
a binding agreement between Buyer and
Seller for purchase and sale of the pro-
perty described under the terms set forth
herein.
The Broker's commission shall be 5%
of the adjusted sales price, and shall be
paid by Seller as follows: $10,000.00
upon the close of escrow, and one-half of
the remaining balance to be paid from the
principal payment due January 2, 1970, and
the balance from the principal payment due
January 2, 1971. The deferred commission
shall bear interest under the same terms
as the note and purchase money mortgage.
Sellers of Parcel 1 and mortgagees
hereunder are Francis Cocke and Joan H.
Cocke. Seller of Parcel 2 and mortgagee
hereunder is Francis M. Cocke.
75
Escrow agent shall hold all releases
of mortgage in t 5 acre tracts to be
executed by Seller or Sellers, depending
on whether in Parcel 1 or Parcel 2, before
close of escrow. Escrow agent shall keep
account of all release credits, and shall
apply any available release credit as
instructed by Buyer, and turn executed
releases over to Buyer as tracts are
cleared by application of release credit,
or by payment of the release price in the
following manner: Tempe Branch, First
National Bank of Arizona, shall hold for
collection the note and mortgage. Buyer
- shall remit payments of principal and
interest, and release payments to said
Bank and shall designate tracts to be
released, so that Bank may apportion said
sums between the respective Sellers. Bank
shall endorse said payments on the note as
collected, and shall credit the amount
thereof to one or both of Sellers as
instructed by Sellers and shall issue a
receipt to Buyer (59 for delivery to
Escrow Agent. Escrow Agent shall thereupon
deliver to Buyer the executed releases of
the tracts paid for by Buyer, or shall
record such releasesupon instruction of
Buyer.
APPROVED:
s/ Francis Cockc
FRANCIS COCKE, Seller
s/ Joan H. Cocke
JOAN H. COCKE, Selier
JAMES STEWART COMPANY
By
s/ Wallace O. Tanner
WALLACE O. TANNER, VICE PRESIDENT
Buyer
/s/ Arleigh R. Burton
ARLEIGH R. BURTON,
Broker
[56]
76
‘*%
s
77
LEGAL DESCRIPTION:
PARCEL NO. 1:
That property situated in the South-
east quarter of Section Twenty (20), Town-
ship One (1) North, Range Four (4) East
of the Gila and Salt River Base and
Meridian, more particularly described as
follows:
BEGINNING at a point on the East
boundary line of said quarter Section,
where said boundary line intersects the
middle of an irrigation ditch being
323 1/2 feet South of the Northeast corner
of said Quarter Section; thence running
is a Southwesterly direction, following the
middle line of said ditch to quarter-
guarter Section line running North and
South through the middle of said quarter
Section; thence South, along said quarter
Section line, 1287 feet to the North line
of Jenkins Ditch; thence East, along said
North boundary line of said Jenkins Ditch
to a point on the East boundary line of
said quarter Section 519 1/2 feet North of
the Southeast corner thereof; thence
North, along said boundary line to begin-
ning;
EXCEPT any portion which may lie
within the right-of-way of the Jenkins
Ditch.
PARCEL NO. 2:
That part of the Southeast quarter
of Section Twenty (20), Township One (1)
North, Range Four (4) East of the Gila
and Salt River Base and Meridian, described
as follows:
78
BEGINNING at the Northeast corner of
the Southeast quarter of said Section 20
and running thence West, along the North
line of said quarter section to the North-
west corner thereof; thence South, along
the West line of said quarter section to
the North bank of the Jenkins Ditch, a
distance of 2090 feet, more or less;
running thence East, along the North bank
of the Jenkins Ditch to the quarter quarter
Section line running North and South
through the middle of said quarter section;
thence North, along said quarter quarter
section line to the center of the Cosner
Ditch, also known as George Ditch, a
distance of 1287 feet, more or less, run-
ning thence Easterly, along the middle of
said Cosner Ditch and following the meander-
ings thereof to the East line of said
quarter section; thence running North along
Said East line to the Northeast corner of
said quarter section, a distance of 323 1/2
feet, more or less, to the point of
commencement;
EXCEPTING THEREFROM, the following
one-acre tract;
BEGINNING at the point of intersection
of the North-South mid-section line of
said Section 20 with the aforesaid Northerly
right-of-way line of the Jenkins Ditch,
said point being North 0 degrees U5 minutes
25 seconds East, 584.12 feet from the
South quarter corner of said Section 20;
thence North 85 degrees 05 minutes 25
seconds East, along said Northerly right-
of-way line of Jenkins Ditch, a distance
of 240.85 feet; thence South 89 degrees
22 minutes 35 seconds East, continuing
along said Northerly right-of-way line,
a distance of 131.69 feet; thence North
5&6 degrees 56 minutes 50 seconds West,
79
310.37 feet; thence North 34 degrees 59
minutes 16 seconds West, 150 feet; thence
South 89 degrees 54 minutes 35 seconds
West, 25 feet to the aforesaid North-
South mid-section line of Section 20;
thence South 0 degrees 05 minutes 25
seconds West, along said North-South mid-
section line, a distance of 311.39 feet
to the point of beginning, being that
certain property named in Condemnation
Proceedings in Cause No. 183278 in the
Superior Court of the State of Arziona,
County of Maricopa, entitled State of
Arizona, Arizona State Highway Department,
Plaintiff -vs- Francis M. Cocke, et al,
Defendants, Lis Pendens of which was dated
December 28, 1965, recorded January 7,
1966 in Docket 5874, Page 566; and
EXCEPT any portion of said property
which may lie within the right-of-way of
the Jenkins Ditch.
80
[57]
Transamerica Title Insurance Co.
P.O. Box 13028 <
Phoenix, Arizona
Re: Joan H. Cocke Trust No. 90497,
Escrow No. 02013111-7
Gentlemen:
Enclosed is a Special Warranty Deed
from First National Bank of Arizona, as
Trustee, to James Stewart Company which
was prepared at the request of Joan H.
and Francis M. Cocke. .
Please place this deed in Escrow No.
02013111-7 in connection with the con-
summation of a sale of the subject property
in accordance with escrow instructions
executed by the parties and in accordance
with further instructions governing the
distribution of the proceeds of the sale
to be furnished to your company, as escrow
agent, by Joan H. Cocke and Francis M. Cocke.
Very truly yours,
FIRST NATIONAL BANK OF
ARIZONA
By
/sf George Hastings
Its: Assistant Trust
Officer
’
81
[58] WARRANTY DEED
For the consideration of Ten Dollars,
and other valuable considerations,
hereafter called the Grantor, whether one or
more than one, hereby conveys to
the following real property situated in
Maricopa County, Arizona, together with all
rights and privileges appurtenant thereto,
to wit:
(PARCEL NO. 2), That part of the Southeast
Quarter (SE%) of Section Twenty (20) Twenty
(20), Township One (1) North, Range Four (4)
East of the Gila and Salt River Base and
Meridian, Maricopa County, Arizona; describ-
ed as follows:
Beginning at a point on the North line of
said SEX of Section 20 which bears S.89°
43'°55"W. 528.00 feet from the Northeast
corner of said SEX of Section 20; thence
S.0°20'41"E. 435.44 feet to the middle of
the George Ditch; thence S.76959'43"W.
236.29 feet along the middle of the George
Ditch; thence S.67°40'43"W. 211.50 feet
along the middle of the George Ditch; thence
S.68°31'41"W.399.54 feet along the middle
of the George Ditch to a point on the West
line of the EX SEX of said Section 20;
thence S.0°07'25"E. 1381.50 feet along the
West line of the EX SEX of said Section 20
to a point on the North bank of the Jenkins
Ditch; thence N.88°40'37"W. 463.68 feet
along the North bank of the Jenkins Ditch;
thence N.89°08'43"W. 481.97 feet along the
North bank of the Jenkins Ditch; thence N.
0°51'17"E. 9.00 feet; thence N.56°56'50"W.
328.73 feet; thence N.34°59'16"W. 150.00
feet; thence S.89°9°54'35"W. 25.00 feet to a
82
point on the West line of said SEX of Sec-
tion 20; thence N.0°05'25"E. 1757.73 feet
along the West line of said SEX of Section
20 to the Northwest corner of said SE of
Section 20; thence N.89°43'55"E. 2121.23
feet along the North line of said SE of
Section 20 to point of beginning, contain-
ing 72.3284 acres within the limits of the
City of Tempe and subject to existing rights
of way and easements for roads, ditches,
and public utilities; and subject to the
encumbrances shown on the reverse side
hereof: ”
Subject to current taxes and other assess-~-
ments, reservations in patents and all ease-
ments, rights of way, encumbrances, liens,
covenants, conditions, restrictions, obli-
gations and liabilities as may appear of
record, the Grantor warrants the fee title
against all persons whomsoever.
Dated this 30 day of December, 1968
/s/ FRANCIS M. COCKE
STATE OF ARIZONA )
$ ss.
County of Maricopa)
This instrument was acknowledged before
me this 30 day of December, 1968, by
/s/ Mrs. Cecilia J. Burton
Notary Public
My commission expires:
12/12/69
[59]
1.
83
Taxes or assessments which are not shown
as existing liens by the records of any
taxing authority that levies taxes or
assessments on real property or by the
public records.
Easements, claims of easement or encum-
brances which are not shown by the
public records.
Unpatented mining claims, reservations
or exceptions in patents or in Acts
authorizing the issuance thereof; water
rights, claims or title to water.
The liabilities and obligations imposed
upon said land by reason of: (a) inclu-
sion thereof within the boundaries of
the Salt River Project Agricultural
Improvement and Power District; (b)
membership of the owner thereof in the
Salt Riber Valley Water Users' Associa-
tion, an Arizona corporation; (c) the
terms of any Water Right Application
made under the reclamation laws of the
United States for the purpose of ob-
taining water rights for said land;
and (d) subscription for capital stock
of the Salt River Valley Water Users'
Association, on account of land in
Agricultural Improvement District No.
2 and Drainage District No. 2.
Controlled right of access to Interstate
Highway referred to in Civil No. 183278;
Lis Pendens recorded in Docket 5874,
page 566.
Mortgage executed by Francis M. Cocke
to The Federal Land Bank of Berkeley to
secure an indebtedness of $
84
and other amounts payable thereunder,
recorded April 14, 1966 in Docket 6004,
page 97, which Francis M. Cocke has
agreed to pay.
Mortgage executed by buyers M. Seth Horne
and Maurine D. Horne to Francis M. Cocke
to secure an indebtedness of $ ,
and other amounts payable thereunder, dated
, recorded
in Docket ’
page .
rN
85
[60] WARRANTY DEED
For the consideration of Ten Dollars, ,
and other valuable considerations,
hereafter called the Grantor, whether one
or more than one, hereby conveys to
the following real property situated in
Maricopa County, Arizona, together with all
rights and privileges appurtenant thereto,
to wit:
An undivided one-half (44) interest in
49.5023 acres of land within the limits of
the City of Tempe described as follows:
(PARCEL NO. 1) That part of the East half
(EX) of the Southeast quarter (SE) of
Section twenty (20), Township one (1) North,
Range Four (4) East of the Gila and Salt
River Base and Meridian, Maricopa County,
Arizona, described as follows:
Beginning at a point on the East line of
said EX SEX of Section 20, where said East
line intersects the middle of the George
Ditch, which bears S.0°20'17"E. 323.50
feet from the Northeast corner of said E
SEX of Section 20; thence S.0°20'17"E.
1806.47 feet along the East line of said
EX SE% of Section 20 to the North bank of
the Jenkins Ditch; thence N.88°40'37"w.
1333.01 feet along the North bank of the
Jenkins Ditch to a point on the West line
of said Ek SEX of Section 20; thence n.0°
07°25"W. 1381.50 feet along the West line
of said EX SEX of Section 20 to the middle
of the George Ditch; thence N.68°31'41"E.
399.54 feet along the middle of the George
Ditch; thence N.67°40'43"E. 211.50 feet
along the middle of the George Ditch;
86
thence N.76°59'43"E. 375.20 feet along
the middle of the George Ditch; thence N.
80°57'10"E. 195.15 feet along the middle
of the George Ditch; thence N.75°14'43"E.
206.00 feet along the middle of the George
Ditch to the point of beginning, subject
to existing rights of way and easements
for roads, ditches and public utilities;
and subject to the encumbrances shown on
the reverse side hereof:
Subject to current taxes and other assess-
ments, reservations in patents and all
easements, rights of way, encumbrances,
liens, covenants, conditions, restrictions,
obligations and liabilities as may appear
of record, the Grantor warrants the fee
title against all persons whomsoever.
Dated this 30 day of December, 1968.
/s/ FRANCIS M. COCKE
STATE OF ARIZONA )
3 ss.
County of Maricopa)
This instrument was acknowledged be-
fore me this 30 day of December, 1968, by
/s/ Mrs. Cecila J. Burton
Notary Public
My commission expires:
12/12/69
(61)
l.
87
Taxes or assessments which are not shown
as existing liens by the records of any
taxing authority that levies taxes or
assessments on real property or by the
public records.
Easements, claims of easement or encum-
brances which are not shown by the
public records.
Unpatented mining claims, reservations
or exceptions in patents or in Acts
authorizing the issuance thereof; water
rights, claims or title to water.
The liabilities and obligations imposed
upon said land by reason of: (a) inclu-
sion thereof within the boundaries of
the Salt River Project Agricultural
Improvement and Power District; (b)
membership of the owner thereof in the
Salt River Valley Water Users' Associa-
tion, an Arizona corporation; (c) the
terms of any Water Right Application
made under the reclamation laws of the
United States for the purpose of ob-
taining water rights for said land; and
(d) subscription for capital stock of
the Salt River Valley Water Users’
Association, an account of land in
Agricultural Improvement District No.
2 and Drainage District No. 2.
Mortgage executed by buyers M. Seth
Horne and Maurine D. Horne to Francis
M. Cocke to secure an indebtedness of
$ , and other amounts
payable thereunder, dated _ ,
recorded in Docket
, page .
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.