Opinion
Civil No. 4452.
Filed April 20, 1942.
QUIETING TITLE. — Where administratrix and widow after settlement of contest of will devising land to her, in order to defeat claim for fees of attorney employed to defend will, asserted that land passed to her by inter vivos conveyance rather than under will, notwithstanding she was not entitled to relief in equity under "clean hands" doctrine, in order to clear up title to the land and avoid further litigation, title to the land was quieted in her provided within 90 days she pay the judgment for attorney's fees and all other costs of administration to date, exclusive of further attorney's fees. See Words and Phrases, Permanent Edition, for all other definitions of "Clean Hands."
He who comes into equity must come with clean hands, see note in 4 A.L.R. 44. See, also, 22 Cal. Jur. 134; 44 Am. Jur. 52.
APPEAL from a judgment of the Superior Court of the County of Maricopa. M.T. Phelps, Judge. On motion for rehearing by appellee. Motion granted and judgment modified. (See former opinion rendered March 30, 1942.)
Messrs. Misbaugh Fickett, for Appellants.
Messrs. Cunningham Carson, for Appellee.
We have examined carefully the motion for rehearing and the reply thereto in this case. While we are still of the opinion that the hands of plaintiff are soiled to the extent that she is not entitled to an unconditional decree quieting the title of the premises involved in her, in view of all the circumstances and the probability that the dismissal of this action will leave the title to the property in a very unsettled condition, and perhaps subject to future litigation, we have concluded to modify the opinion by holding that if, within ninety (90) days from date of rendition of this opinion, plaintiff Era B. Leggett pay to H.A. Wardenburg the amount of his judgment in Leggett v. Wardenburg, 53 Ariz. 105, 85 P.2d 989; and also pay all the other costs of administration of the estate of John E. Leggett, deceased, to date, exclusive of further attorney's fees, the judgment of the trial court will be affirmed. Otherwise, it will be reversed and the case remanded with instructions to dismiss the action.
McALISTER and ROSS, JJ., concur.