Appeal from Superior Court, Maricopa County; Dudley W. Windes, Judge.
Suit by Paul M. Ryerson and Jennie S. Ryerson, husband and wife, against Lucy Kresse, a widow, for specific performance of a contract to convey real estate. From a judgment for plaintiffs, the defendant appeals.
Marks & Marks, of Phoenix, for appellant.
John M. Levy, of Phoenix, for appellees.
LaPrade, Judge. Stanford, C. J., and Morgan, J., concurring.
[64 Ariz. 292] This is an appeal from a judgment decreeing specific performance of a contract
to convey real estate. The appellant, vendor, entered into an agreement on July 17, 1944, with the appellees, for the sale and purchase of a parcel of real estate in the city of Phoenix. The agreement called for a purchase price of $ 4,750 upon the following terms and conditions: $ 1,000 as a down payment and the balance to be paid at the rate of $ 75 per month, the first payment to begin September 15, 1944. Possession was to be given to the appellee on August 15, 1944. The agreement was placed with a title company and escrow instructions were entered into in accordance with the contract. The buyers deposited the sum of $ 1,000 with the title company.
The title company discovered that the seller had previously conveyed the property to one Agnes Eppich, whose marital status was not disclosed. Thereafter Agnes Eppich reconveyed the real estate back to the seller. In this deed her marital status was not disclosed. The title company called this situation to the attention of the seller and requested her to furnish proof by way of affidavit of some one who knew the facts as to the marital status of Agnes Eppich from and after the time she acquired [64 Ariz. 293] title and to the time she reconveyed. The seller declined, or was unable to supply this proof, though apparently she made some attempt in this behalf, and from time to time advised the title company of her efforts in this behalf. The seller did not put the purchasers in possession on August 15, 1944, or at any other time. The purchasers did not tender or make the monthly payments required under the contract.
The purchasers at no time demanded possession, nor did the seller demand the specified monthly payments. It may be fairly deduced from the pleadings, testimony, and conduct of the parties, that each of them waived these specific requirements. The purchasers were at all times ready, able and willing to proceed with the contract. Their delay was occasioned by the fact that the vendor could not give a merchantable title. The conduct of the seller indicates that she did not expect the monthly payments for the same reason. At the time the contract was entered into the premises were rented and the seller continued to collect the rents. On December 7, 1944, a conference was had at the office of the title company, at which both parties were present. At this conference the purchasers agreed that they would accept title to the real estate subject to the cloud existing as to the possibility that a husband of Agnes Eppich might make some claim thereto. The title company requested the purchasers to write that they would accept a guaranteed title containing an exception as to the apparent interest of any husband of Agnes Eppich. This they did, and in this communication there was also included the following paragraph: "It is understood, however, that a new set of escrow instructions are to be entered into and between the Seller and Buyers, and possession of said property are to be given us not later than December 15th, 1944, under the same terms and conditions of the present escrow instructions, and all taxes, rents to be prorated as of December 15, 1944."
Mr. John M. Levy, attorney for the plaintiff, referring to the conference had in the office of the title company, testified as follows: "After the conference broke up I walked out with Mrs. Kresse and we went up to the corner and stood there talking and I asked Mrs. Kresse, told her that the only fair thing to do is to make reparations on taxes, interest and rentals and everything up to December 15th, 1944, and taxes as of that date as well, and she had collected the rents all this time and she stated that was perfectly satisfactory, I am glad to get this over with; and in pursuance of that ...