# Appendix — Cocke v. James Stewart Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1181%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 423 U.S. 1017 ## Text . 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 o 3 'O rw ey) -- =] ct rey oO | WY ue) @ Q h- rh - Q Ae) om a} rh 3 fu so) Q @ 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. a ee peel te owe hs, Seah re Mi Re 0 adel Ok ors 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 ie Cel a aene ie - 4 * % * % 4 4 3 4 i ; ¢ 16 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 | Meare LDR. ~~ & 2 3 3 ; 17 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 wi «hy pander ¥ % % 4 oN 5 18 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 i ; 2 s = % { : 4 a | ‘ Pe - FY 2 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 “ | 1 i 4 “ 3 N aa (ie alias ate iu. 24 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 ee ee eT ee een ee Te tee ee a ae 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 Ronee 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. 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S ee et Rgeet, «0m comand, off chargee poveble be thee or aperieely, 08 proveted boone. = « te Bee 0 One wee me Cer bekelt, bem axsneemrate, a ethoresee eedrs shengre me ane seomeme tere © oe te «sere e ont beers the pedbuere te seemers's spree Sh the tr qeree Ghar the centres ee wee" fe + Oe. O88 te peemle ehewer <2 mobo caeh cctes ot teeres oe ererrsteme os mee be eperete ally | a + Sed Oe Ot PRE Ee ttre eo emee tee b pein ore fe tee Agret w te the porte cmaled thorrem, ee «+s o@& oe comes We eee wuhen the tree bere greeted Beere tee rompbonic, on o8 come sheeratees ee + eres 6 «meet bee someone bee tere eee om I mtow Agen os here me peek wee ef ee 8 Ryeee, oe Re freee amy armend 16 ee epee & tem eros theese momen tomes oy the 6m row, of he eee ee ee ee 8) aepocned beer entre waedd ce etree shell be bemnghe op « comet of ¢ emgeeres -_— oe Oe ereten ot % hee aed Menee oe te emerepicnd seed partes by oe er tere beonyte oe cog te & ¢ mart. . Seem & cme ot 80s) an eons om beats, tere Aedes tong there teem we sharers ond ae cepreers and enmary's ~_—<+< © comme OOS ete Se 6 met or teem, shell eoleree bsee Agen of off berehes beoteteny Cad ait ieel i ee ee ee eermare’s levee, copenere oot hoteheewe, tee « on Geom ee f ~ y Be ee +t Reeteee @& Ermer, tree Cab these eee em tomes GO Ceres Cf bey Cour Sctere ertemg there ood o oe sete @ & oon. . ee, oF arp eee om of chase @& setetemres mm «omen teme tne propemy, mg the e aseeemens Ge the enwent ercared oy beck bee whee leotelay of scopemerbelng fer the eccerery of serk sro eres ~eneeee bee, eccermwes Ore, ae cereece tee changed oF ny colleceree agent, bolder os parre ebell be poid by the Fritters 8 eee eberes er spread. r- weet eee whee these inewertsans bese been compure eoth cad Tree Tale te Compe ie willing ve © me teehee so cerene priory, 00 wererwcters Proeseed, ond whee becrew Age's charges here bree pord, m shell drbwos, + 86 Mee ceed @ the epprererere pemien ote, obi erceesery de ements erqewed 0 be tiled ot ceemded, imswerting the © hes ae.ane's tte: © 60 Meek See decwmene oes erded therem: Fe tar porters eatsled therere of the eudvesees giere herem, Reet tome Feesee Agoas shell drecusee o:) bunds pore te 6 brerander, 06 proveded berem. Aap cubes papers ar dovememe . te wprewe Ot Deceee Ageet, be ariireeed te the pony ememied thevese by marling mm the menner bere prorated tor se Gf “heen os, Pemenee a Iwelereseoas™. Eerree Apres mop drewey ae tele and conerace eorem eter there peas a emee af e0c1ee Ge termmecteee at collerteen, of apprepeseer, Me econ ageceet Fearew Ages eeremg coder thee -ettewes shes? be corumenced mere sean there pours teem the ener Ge Cones of erwen seerers. ° . Spree thas the empeovere: af Trencomrece Tele levercace Compeey, of Fecsew Agvet, we eller: any righo we & ot mee be pwteey anes seees the verae of any tothe mow cane F teeeed 9 ee he ed e * Lean: a : : te eater parse elects we cones! cerns mewertens bereese of the lellere of the evher party te comply with any of she. + boveet erence she wae mete rovaded berern, sare Porte oo electing te cence! enetl Grmeer te Eersee Agra: e sthere © 00 che aches pany ond Fervee Agret ermending thet seed eoher party comply Suh the teres bereet enbee stheseee © pam cee cece: at bard coe by boeree @ ches choce enowermene tell choveages trees conpetied Pace cecd wenmsee somes 00 Geivererd ce Tecree Agent by the pony ce clearing ve esorel, Lerree Agvet shell eesbia O0°e mere cies sees apy of cmd core we the cher pany v0 the menee: proveded homie fer the marling of Neto, oo Pocliacwene . °9 ac” . ° . pal SFucces cond cares umm chal tad exbio cmd Alinsenday guslid co cangly with die? ceo wens tencifitess 5 ene. were comeciiod ad “ oe - Foeree Agem ve Peost Te pe- ce me pare vlecemy ve ceoeel, ore any chwgrt ween Te pee te cece cober pany, any mber oe . eepoomned hereende: by 20td other party, eher Sodecimg say cherges ovramnang eopesd. . To por ve rhe perey cleceong 00 cences, any meney Gepocieed by s0rd party, sheer deducting any charges remesamng ae Deusets Vo severe o.: derearass deposed bereunde: 00 the pory whe delivered the come eae “eines and Payer, short choil be marked “eoneelied”’ end severeed ie the hive of Ree oe omens corr eed oi ey coll * eagelerly catabtrehed petire beomees Looe of Decree ggem ter cock doy, provseed, shen-4 Fecree Ageet oe ereeed oa TITLE KMUR ANCE: . 44. The wthe eeewence provided fer beorin, shell be sebrret se the condaccee of cad eveteoeed by tbe rege-a tare Owner's Tule tevereece polecy of Veeesomerce Tule bewance Compress ene 6 how af nent eqnes ve the me ce Vee be part py Mores. Reed potty, epee seowerce, ebell womwe He mee OF te eeee a detente « tee te we i, a! The parse eniegeted we poy the commesecen shell ear cegeteese me soy earesl cancetiovion of three inowertions Sweet coveng bares ceceered seed be. eorere egrets Semiee Camere: te Fecrew Agem. . se VPN «emeeecwe ad.theee eeetteemes fee any teeces, chewld ony beats, ofere de jertmg Ferree Ageat's charaee, Of me Peete te « party eplagased were . were te pep ceed Comerseree, hee becrew Agra: ehell pay te che eel eovece eceut Perel -*. © Gem fqesl te cee-neu af the Cornet money deposed by coy ethos party cod peyeble ce the party +6 eee OOS, tet Bae mare mae toe fol, omoem of curt ¢ommeeeme: —S + *e.00— Ayew ce emebie G eeenunts © © wah theee mewertrens ber cay rreeen cher than cence llewee ce tere presse el, et Teensemren es Tiste bnowence Somapany 66 eowrileng te ceter aay tule memes pelery preeuted ‘eee tareme Agee c@ Swereed ce fer the charges pepente by Reyes trem ony menry Grpeomrd * “er ender by Repee, « *h* wales. © eee ermmecemg te teres, oe 00 pes the changes pepette by Seles bom cog ewrery = pooner d brrrendes + etme te Lehem © fee fe merteng te Solies, on4 olf de ere fers eed by ene porte enly ee or poen ek | eo cee +See OP 008 e4 00 the Perens eee oor. ened sont dr eerate, Mecclly cerreed soonemrate ohell be erreserd by * %.ee8. “0° © seems ade ot the pow wes beeen, Pmeew Agrat be bevethy imotrererd thet cay pepeermes of ~_— s+ Oe toe weet oe be ec operd woleee co:4 peyemret ce eretroed @ seek, cevirterd @ tackle tee + teremei 0 Oe OO be ohare Of pepewet @ theee 4m cmmeetee eolece oppressed OF the party cqr beng “i: & ° ° Owe NT TOR aol OF RFA PROT TY: ~~. owe tet he ements Peotrer i 1@ be peed oy Hepes oo rendered by of egreemra: ter cole, 2 eeeruerd % © Mes > fereetes we be teracet el oF Meese, end eneh omer ee ed hibaen.tipen aur On, OO ae Bin MO Semewnne by eller ems tees t+ 6 eerew Agrat seerk ohell sreeed seed egreemern: ond bold cord een eee ee sere Bee tee the erent ft Sectee ence cord eprermrns bee cele beve bree perd end the + 10 mee wet, ot wher ome Pecvew Aree ehel, deliver coed dred ce Meper. be the eeret of © df towts enters © t terme, Op eres, Seocee c04 epee Beeewerrs, tere bewe, soreresere, ond energee, agree pret becsee oe ROTO8 os Cg, te ame eOORrE eT a were om seed eyeremrnt 204 eral prapemy by tecercenee of Ati cderee of or we Perr re oe 055 a lowe © Sete Jem Oeeres Ogre by Bae parties 1@ Lecrew leowectsene. 2, = #8 60 o® beeeelt weeet om % O.erement, Seder Mey other elers te brie cm cceree agemet Hepes t-. eprerie peolere- oe minere smerrerare terror! oe ony Letter @eeers, cee benrtg, bat oo ad to, lewis wave bp eomece of +6 OF eee Pereemere may on enteweed only aloes the ce>cereem of the following prevnde olees ouch delewk: ehewe + oe “eet om Se pee. meee Fone: Lose tee AOR + te dope, 20%) ot mere, bet boos chon JOU+ 64 dope, DO. et meet, bet «. O%e bs. tore, WR ee were « 2 weeere. be cempatres yy er0gee, the emevat of coy egeeemce: te sole of ae wereeed we poperet anly co she eorees of preecepel arewelly perd theres ty -—* ater i om = peed bp Gores ob ei ° . ‘BEST COPY AVAILABLE * devermene end tee whete ecewmres 20 hoteley. Chalo can © complone last, cagvecwece bee news che caans ents ts tts oe meet te eee, “othe etell & ee Deets Seere ee © ge Gee gts emee reer oert Be ewe Fy ee, “eet bee ot te ewe Beer ete te fe ee i el ee oe ee eee oe . o~* 4 me teh rere, Be ewe Opt nt of ot.g @remee +t ere Fe gerweted wreece Be che eecteny of “tere oe, foe “es © +s The. ; o~e orth he ements of cng beh eee om: © treet tees Oem, Coemerre eho 8, ce ee cerg he wees, Pweermed «teehee es Oe be wee te* one bette eeeree © f weyers Serre fore ee ce Oeeee tothe. be 0 coe — it} tf —_— -_ne pred, cord fee, ot terree Byew e a1 a, erell oe Gere od trom tee ce + hotenre werd *olies by fepee. Se liee moe dee cee . were I a le oe . é 0 wees be om perm of oe oor. . yf ; mode be Pereee A, +00, Seer cnt Piger ooll peg te Ff orcee Oprer he . feode, eemeeetes tee ee eeet ont oe jp oriwmeng Geeemee a came «+ Dave bee creme re queers 4 on to wenceee sé ea tes the toome af the § asece eee weed ehegee eo mm toms aia age “itl it i He mi! rf 7 wovtee of change there d bied oot Fee ap hevcce, Lemond a telae-ce te eaters par ve > teceee Agee, a, of oe olan + ot fl earwe Agree ce snes oo. The ward “preparty™ ce coed bevein cetere ce the soel prapeny Grecested we ced wheck co he cutyoet of ceeee ome ee . @. The weed “pony” c¢ ceed herein, sotece ce Belles oe Beyer os Ge cone mez be. és. The pecoes “Belier ond Beper™ c¢ coed bevem, erleve co belies aed Boyes beck josesly and covereliy colees core open eed. ° 41. The doy provided tevele wmbie which complecace ohh ony requwreecet oust be met ehe.! ond ot che «loow of me pre ber beens ce phrewghowt cond bus mere bows. * 4h “Cheese of Eeceen”” shell owen she dose of she policy of smile ceomence ve be toeerd hovem. ** . bearing coce of coe bee wrag COCO ()) Becltrag ond cebe: o> uw recive coresemts te which prepenys ic eebieth () Kveraware ond inghee of wey ter reedwope, cancia, leverels, dashes and publes eulaine ever and aevece the prep * (4) deemwtgegee celeceed ce boven: P fe) Righss of parvies ender she sgrevewes ter sale selewed te beewin; (Ph Righes af Beyer ender the agreemen: tor sole proveted ter bemvin: ig) Aey beens a cnc mmtreeces slterting 0:6 property seliered a wecemed theongh coy ant ar fone of the perwy a ot emyene deriving am emeetent @ ced prepeny by a theough t seed pany wowed. (eh) Cicdslewe end cifiqanene ingesed on antes or eostecian my ease _ ny an 4s) Reservrovseme cad fecep: one = Pacasce 4% MOTHS There are come meres whert Tesecoernce Tale c 9 éere om cmeem te eremnge fotlewing de ores yous portm clas ¢ emenbey eecems “We teaser ended aot benes's ond marorse!l ores wee, " (0d Caswwen procencl ropenny sovess sage «) thtay chaagets cna ‘co cteeutns git, Saws Sad chum os 1 Charges ber inigetiog eover ond pornos ° -- 5 "~~ : . fe) Bewadery beers, bevccien of ep err erete aad poser scan. Conn wk bee on coe of the property, cach c0 emmy 006 balding erdecetes cad tacking ome p alle : 7 ws ° . Ss peed cd shot cork pole we et Neen) . ©) Recervasiene aod cocepsions ie Power, catty ber ecomple, a0 oul @ amoral secers mene. 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. I [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1181%3A02. Public record. Not legal advice.