legal or equitable claim in Arizona

1954In order to avoid a patent it must be annulled in a direct proceeding, in equity, for as a general rule a grant or patent, from the state cannot be collaterally impeached, unless it is void on its face.’ 32 Cyc. 1095.” (Emphasis supplied.) We note also that the following occurred in Union Oil Co., v. Norton-Morgan Commercial Co., 23 Ariz. 236 , 202 P. 1077, 1078 ; there one Starkweather secured a certificate-of purchase of state lands; fhe Norton Morgan Commercial Company docketed a. judgment against Starkweather, who had declared a homestead on the tract.

1954In order to avoid a patent it must be annulled in a direct proceeding, in equity, for as a general rule a grant or patent, from the state cannot be collaterally impeached, unless it is void on its face.’ 32 Cyc. 1095.” (Emphasis supplied.) We note also that the following occurred in Union Oil Co., v. Norton-Morgan Commercial Co., 23 Ariz. 236 , 202 P. 1077, 1078 ; there one Starkweather secured a certificate-of purchase of state lands; fhe Norton Morgan Commercial Company docketed a. judgment against Starkweather, who had declared a homestead on the tract.

1954However, in Campbell v. Flying V Cattle Co., 25 Ariz. 577 , 220 P. 417, 421 , we said: “When, therefore, the land department, upon which devolves the- duty of determining the character of the state’s land and of knowing at the time of the sale of any particular tract that it does not contain mineral in paying quantities, reaches a decision on the question, its conclusion is final, and a patent or other muniment of title based thereon and issued by it is indefeasible, unless if ‘be attacked by the state or an indimdual having a prior legal or equitable claim to the land and by no one else, and

1954However, in Campbell v. Flying V Cattle Co., 25 Ariz. 577 , 220 P. 417, 421 , we said: “When, therefore, the land department, upon which devolves the- duty of determining the character of the state’s land and of knowing at the time of the sale of any particular tract that it does not contain mineral in paying quantities, reaches a decision on the question, its conclusion is final, and a patent or other muniment of title based thereon and issued by it is indefeasible, unless if ‘be attacked by the state or an indimdual having a prior legal or equitable claim to the land and by no one else, and

1947We are in accord with the universal principle relative to giving effect, wherever possible, to the intention of the testator; however, we deem the proper approach of the court best expressed in Re Kline’s Estate, 138 Cal.App. 514 , 32 P.2d 677 , 680: “Respondent makes the suggestion that, since legacies and devises for charitable purposes ‘are the favorites of the courts, * * * the language should be liberally construed so as to create a valid trust if possible.’ Even though the fact be conceded that when, in the course of the operation of their proper functions in cases of this kind, in some

1947We are in accord with the universal principle relative to giving effect, wherever possible, to the intention of the testator; however, we deem the proper approach of the court best expressed in Re Kline’s Estate, 138 Cal.App. 514 , 32 P.2d 677 , 680: “Respondent makes the suggestion that, since legacies and devises for charitable purposes ‘are the favorites of the courts, * * * the language should be liberally construed so as to create a valid trust if possible.’ Even though the fact be conceded that when, in the course of the operation of their proper functions in cases of this kind, in some

1946A. Rushing are one and the same person it may explain the reason why the defendant in this action made no allegation in his affirmative defense, that he had a legal or equitable claim in the property and was entitled to redeem under Section 73-823, supra. A somewhat similar, situation arose in the case of Sullivan v. Woods, 5 Ariz. 196 , 50 P. 113 , in which case the defendant made an allegation of claim of title to the premises and objected to the jurisdiction of the Justice Court, setting up facts in hi's answer on the basis of which the defendant claimed title.

1946A. Rushing are one and the same person it may explain the reason why the defendant in this action made no allegation in his affirmative defense, that he had a legal or equitable claim in the property and was entitled to redeem under Section 73-823, supra. A somewhat similar, situation arose in the case of Sullivan v. Woods, 5 Ariz. 196 , 50 P. 113 , in which case the defendant made an allegation of claim of title to the premises and objected to the jurisdiction of the Justice Court, setting up facts in hi's answer on the basis of which the defendant claimed title.

1888In the case of Watkins v. U. S., 9 Wall. 759 , a case relied on by the learned counsel for plaintiff, Mr. Justice Clifford says: “Whether the claim is a legal or equitable claim, if it has been duly presented to the accounting officers, and has been by them disallowed, it is the proper subject of set-off under that act; but it cannot be adjudicated in a federal court unless it has been presented and disallowed.