GOOCHER et ux.
MAAS et ux.
[76 Ariz. 112] Robert S. Murlless, of Florence, for appellants.
Charles E. Butler, of Phoenix, for appellees.
STANFORD, Chief Justice.
This is an appeal from an order for summary judgment on the counterclaim of appellants[76 Ariz. 113] in favor of appellees, entered in the superior court of Pinal County on April 25, 1952, and also from a judgment on the principal case of above parties entered in said court on May 17, 1952, and from an order denying a motion for new trial.
The motion by appellees for summary judgment on the counterclaim was heard by Honorable Porter Murry, Judge of the Greenlee County Superior Court, and the case on its merits was heard by the Honorable Renz Jennings, one of the judges of the Maricopa County Superior Court.
Appellees herein on the 23rd day of January, 1950, purchased from the appellants the following property:
The West Half (W 1/2) of the Southeast Quarter (SE 1/4) of the Northwest Quarter (NW 1/4) of Section Seven (7), Township One (1) South, Range Nine (9) East, Gila and Salt River Base and Meridian.
This property is located on U. S. highway numbered 60, 70, 80, and 89, and is approximately five miles east of what is known as Apache Junction in Pinal County, and consists of 20 acres through which the said highway runs diagonally from northwesterly to southeasterly. The property is used for a motel court, being heretofore known as Sand Tanks and more recently as Desert Gold Lodge.
The land described was purchased by appellees from appellants on January 23, 1950, and the appellees were attracted to the property by an advertisement in a newspaper published in the state of Michigan, which was the then home of appellees. The appellees made two trips to Arizona to see the property; one in August 1949, the other in October 1949.
The improvements on the property consisted of three stucco motel units, constructed on noncontinuous foundation block; two double concrete block units, consisting of four separate complete motel living accommodations; a frame motel cabin; a combination service-station, kitchen and
restaurant of frame stucco with concrete floors; a combination storage, toilet and electric power plant unit building of frame stucco; and all improvements, furniture, fixtures and equipment to operate an eight unit motel-service station-restaurant.
G. E. Sparling, a civil engineer, testified:
'* * * the extreme westerly line of buildings is 66 feet outside the property itself.'
The purchase price of the property was $32,500. In payment of same appellees deeded property that they owned in the state of Michigan to appellants at an agreed value of $17,200, and appellees gave their promissory note and mortgage on the property purchased for the balance of $15,300. The note was payable at $200 or more per month, commencing on Feburary 23, 1950, with interest at the rate of 4% per annum.
In June, 1951, appellees were advised that a portion of the improvements which [76 Ariz. 114] they purchased were located on land owned by the state of Arizona and thereafter had a survey made. The survey disclosed that two and one half cabins with kitchenettes, a septic tank, two butane tanks, several ornamental cacti and other valuable improvements were located on state land. Neither party knew of the mistake in ...