APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge.
Judgment reversed with directions.
Messrs. Struckmeyer & Struckmeyer and Mr. Claude E. Spriggs, for Appellant.
Mr. Milton L. Ollerton, for Appellees.
LaPrade, J. Stanford, C. J., and Morgan, J., concur.
[63 Ariz. 92] The appellees Hogle and wife filed an action in the lower court to quiet the title in them to two certain lots in the Town of Mesa City, Arizona. Among the named defendants were Minnie Pomeroy and Maricopa County, Arizona. The county answered through its board of supervisors. Plaintiffs in their complaint alleged that the lots in question had come into the ownership of the state by virtue of a tax sale, and that the board of supervisors had thereafter advertised said property for sale at private sale. They alleged further that they submitted a bid of $ 1,800 cash. With reference to this offer, the complaint contains the following allegations:
"It was further agreed by and between said Board of Supervisors and the plaintiffs, on or about March 1st, 1943, that said Board would place with the Arizona Title Guarantee and Trust Company a deed executed by said Board conveying title to said property to the plaintiffs with instructions to said title company to deliver said deed to the plaintiffs upon their paying to said title company the sum of $ 1800.00 on or before ninety days from March 1st, 1943, $ 200.00 of said purchase price to be paid to the title company at that time.
[63 Ariz. 93] "That such a deed was placed with the Arizona Title Guarantee and Trust Company by said Board and the plaintiffs paid the sum of $ 200.00 with the understanding that if he failed to pay the balance of the purchase price on or before June 1st, 1943, said sum of $ 200.00 would be forfeited to Maricopa County."
The evidence discloses that the appellees did not tender any cash with their written offer of $ 1800, or at the time of the pretended acceptance. At or about the time the offer was made, appellees made an application to the Western Savings and Loan Association for a loan with which to purchase the property. After the offer had
been received by the board of supervisors, an agent of the loan association called on the board of supervisors and informed it that his company was going to make the loan; and that before the company would advance the money it would be necessary for the Hogles to institute a quiet title action. He suggested that the supervisors execute a deed and place it in escrow with the Arizona Title Guarantee and Trust Company. Following this suggestion, the supervisors adopted the following resolution:
"Lot Sale Escrow Authorized
"Following consideration, and in accordance with the provisions of Sec. 73-839, A. C. A. 1939, motion was made and unanimously carried accepting the offer of John R. Hogle to purchase Tract 'B', South 1/2 of Lots 5 and 6, Block 29 Mesa, for $ 1800.00. The Chairman and Clerk were authorized to execute a deed thereof and place same in escrow for delivery ...