WALKER et ux.
ESTAVILLO et al
Rehearing Denied March 11, 1952.
Reversed with instructions.
Moore & Moore, of Phoenix, for appellants.
J. D. Merrill, Irwin Cantor, of Phoenix, for appellees.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
[73 Ariz. 212] This is an appeal by plaintiff-vendors from a judgment of the trial court allowing defendant-vendees the right to rescind a contract for the sale of real property, and to recover damages in the sum of $ 226 for improvements made on the property, as well as $ 526 as a refund for the money paid toward the purchase price.
The parties will be referred to by their designations in the trial court.
Plaintiffs and defendants entered into an agreement dated April 29, 1946, whereby the plaintiffs were sellers and the defendants buyers of a certain tract of land described with particularity in the agreement. It is not disputed that both parties at the time they signed the agreement, thought that there were two houses on the land that defendants were purchasing. Defendants went into possession of the premises, paying $ 500 at that time and monthly [73 Ariz. 213] payments from June 1, 1946 up to and including June 1, 1948. During the early part of June, 1948, defendants received a letter from the Arizona Sand & Rock Company to the effect that both houses which defendants thought were on the land they were purchasing, encroached on property owned by the company. After receipt of this letter, engineers of the company also made a survey of the premises, showing by stakes that one house was completely off the land described in the sales agreement, and the other was over the line a few feet on one side.
Shortly thereafter attorneys for the defendants gave notice of this by letter to plaintiffs and received the following answer:
"Your letter of July 19, 1948, received.
"It is Mr. Walker's contention that even though the legal description contained in the contract to Mr. Estavillo does not cover the land where one of the houses is located, he and his predecessor in interest have occupied the land for more than the period prescribed by the Statute of Limitations; and Mr. Walker, for that reason, expects to deliver perfect title to Mr. Estavillo when his contract is fully paid, including the land in dispute."
On September 9, 1948, defendants notified plaintiffs, in accordance with the procedural requirements of the agreement, that they elected to rescind said agreement because "* * * adverse claims have been asserted against said buyers to ...