(specially concurring) .
I concur in the result reached by Judge McGhee. However, since the quiet title judgment of March 17, 1953,' is ambiguous as to Edward Jacobs’ capacity (whether he was acting as trustee, acting separately or as agent for the community) in bringing the quiet title action, it was essential that the trial judge consider the evidence ad*442duced for resolution of this point. Cosper v. Valley Bank, 28 Ariz. 373, 237 P. 175 (1925); Nelson v. Nelson, 91 Ariz. 215, 370 P.2d 952 (1962).
The trial judge recognized that Edward Jacobs being a married man at the time he received the deed from his brother Arthur and at the time of the quiet title judgment of 1953, the land involved was presumed to be community property. Apparently he was not satisfied that the presumption was overcome. Since there is a substantial conflict in the evidence on this point, the conclusion of the trial judge should not be disturbed on appeal.