Fennemore, Craig, Allen & Bledsoe, of Phoenix, for appellant.
Gust, Rosenfeld, Divelbess, Robinette & Linton, of Phoenix, for appellee.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
[71 Ariz. 308] Suit was commenced by Hermina Hinkley to quiet title to lot 12, block 10, City of Phoenix, against defendant Glad Tidings Church, hereinafter referred to as the Church. The Church answered and counterclaimed asking for specific performance of a contract to purchase real estate. From a judgment in favor of Mrs. Hinkley by the trial court sitting without a jury, the Church presents this appeal.
The facts giving rise to the controversy in this case are these. Phil R. Hinkley and Hermina Hinkley, husband and wife, owned as joint tenants certain property situated on the northeast corner of East Adams Street and Second Street in Phoenix, Arizona. On December 29, 1938 the Hinkleys entered into a contract with the Pentecostal Holiness Church, a corporation which later changed its name to Glad Tidings Church of America, for the sale of this property to the Church.
The contract provided for a purchase price of $ 20,000, payable $ 10 cash at the [71 Ariz. 309] time of executing the contract, monthly payments of $ 45 which were to include 2 1/2% interest per annum on the unpaid balance of the purchase price, and that the entire balance was to be paid in cash on January 1, 1940. Time was declared of the essence and the Church went into immediate possession under the contract. The contract also provided to escrow the papers with the Arizona Title Guarantee and Trust Company which was never done.
The contract was recorded on December 30, 1938 and on the day the contract was executed, the Hinkleys executed a warranty deed in favor of the Church and the
Church executed a quitclaim deed in favor of the Hinkleys and these documents were left in the latter's possession. After the contract took effect Mr. Hinkley died late in 1939 and Mrs. Hinkley took the property by sole survivorship.
About June 4, 1940 the Church having failed to pay the balance of the purchase price on January 1, 1940 as provided in the contract, but having continued to pay, and Mrs. Hinkley having continued to receive, the monthly payments of $ 45, Mrs. Hinkley sent a "Notice of Cancellation" to the Church which was acknowledged on June 7 by Mr. John T. Sharrit, who occupied the dual position of secretary-treasurer and trustee of the Church and also ...