APPEAL from a judgment of the Superior Court of the County of Maricopa. C. C. Faires, Judge. Judgment reversed and case remanded, with instructions.
Mr. L. J. Cox, for Appellants.
Mr. W. T. Sprowls, for Appellee.
Louie Ka Del Eshbaugh, hereinafter called plaintiff, brought suit against John Tolmachoff [41 Ariz. 319] and Esther Tolmachoff, his wife, hereinafter called defendants, under the provisions of section 4359, Revised Code 1928, to recover possession of certain realty described in the complaint, alleging that she was the owner and entitled to the immediate possession of the same, and that defendants unlawfully kept her out of possession. Defendants answered, denying the allegations of the complaint, and averring that the equitable title and the right to the possession of the property was in defendant John Tolmachoff under a certain agreement for the purchase and sale of the property made between plaintiff and defendants. Defendants further filed a cross-complaint asking that their title to the property be quieted in accordance with the terms of said contract of purchase and sale. Plaintiff demurred to the cross-complaint, which demurrer was duly sustained. She then replied admitting that defendant was in possession under the contract above referred to, but alleging that it had been forfeited by her for failure on the part of defendants to comply with its terms. The case went to trial before a jury on the complaint and answer, a verdict being returned in favor of the plaintiff, and from the judgment rendered thereon and the order overruling the motion for new trial this appeal is taken.
There are some nine assignments of error, but we think we need consider only the first and the fifth. The first is that the court erred in sustaining plaintiff's demurrer to defendants' cross-complaint. Section 4359, under which the action was brought, reads as follows:
"Possessory Action; Counterclaim. Any person having a valid subsisting interest in real property, and a right to the immediate possession thereof, may recover the same by action against any person acting as owner, landlord or tenant of the property claimed. [41 Ariz. 320] The action shall be commenced and prosecuted as other civil actions, but there shall be no counterclaim therein except of like proceedings, as herein provided."
We have held in Genardini v. Kline, 19 Ariz. 558, 173 P. 882, that the action authorized by this section is in the nature of an action in ejectment at common law. At common law ejectment was purely a possessory action, and, even as modified by statute, and though based upon title, it is still essentially of that nature, and is confined to cases where the claimant has the possessory title. 9 R.C.L. 927.
The counterclaim, on the contrary, is in effect an action for an injunction and to quiet title, a very different proceeding from ejectment. We are of the opinion that under the provisions of the statute above quoted the trial court properly sustained the demurrer to defendants' cross-complaint.
The second assignment of error is that the court erred in refusing defendants' motion for an instructed verdict at the close of all the evidence.
There is singularly little dispute as to the real facts in the case, and we therefore state them as follows: In 1917 plaintiff, who was then the owner of the premises involved in this action, entered into an agreement of purchase and sale with defendant John Tolmachoff. The latter went into the possession of the premises, and ever since that time has been in possession thereof under the original agreement; a substituted agreement made in 1925, and a modification thereof made in 1926. By the terms of the last agreement as modified defendants were to pay plaintiff $10,463.58 as the purchase price of the land as follows: $500 or more on November 29th for each of the years 1927, 1928, 1929, 1930, and 1931, and the balance of the principal on November 29th, 1932. Interest was to be paid on all deferred payments semi-annually [41 Ariz. 321] at the rate of eight per cent. per annum, and, if not paid as due, was to be compounded, while defendants were also to pay all taxes on the premises. The agreement contained the following clause:
". . . It is further agreed that time is the essence of this agreement and in the event of default in making any of the payments herein provided to be made promptly, when same become due and payable, or in the event of failure of the party of the second part promptly to comply with any of the terms hereof, then the said party of the first part shall be relieved from all obligations in law or in equity to convey said property, and at the option of said party of the first part, the said party of the second part shall forfeit all right thereto, and all interest of the party of the second part in and to said lands by reason of his agreement ...