Modified on Denial of Rehearing April 26, 1961.
[89 Ariz. 236] James J.Cox, Jr., Phoenix, for appellant.
F. Britton Burns, S. Paul Ferrin, and George Welch, Jr., Phoenix, for appellees.
Ryley, Carlock & Ralston, Phoenix, for amici curiae.
E. R. THURMAN, Superior Court Judge.
Action by Paula Hassenpflug, plaintiff, in the court below for specific performance of a contract of sale of certain real property being Lot 186, Ingleside Club Tract in Maricopa County. From a judgment in favor of defendnats, plaintiff appeals.
The material facts established that on June 7, 1955, the plaintiff and the defendnats entered into an agreement entitled 'escrow Instructions to Lane Title & Trust Company.' By the terms of the agreement the plaintiff agreed to buy and defendants to sell a lot, the real property here in controversy for $2,000 to be paid by the plaintiff by September 7, 1955. The escrow instructions provided that the buyer (plaintiff) was to have immediate possession of the premises.
Plaintiff was given the immediate possession execution of the contract she entered into excution of the contract she entered into a building contract for the construction of a residence at an agreed price of $10,000. The construction company had much of the work done when had weather further interrupted the work and this was followed by a strike, all of which delayed construction of the building.
On September 8, 1955, plaintiff being in default under the escrow agreement, defendants gave written instructions to the escrow holder to be served on the plaintiff notifying her that the contract would be cancelled in 13 days thereafter. However, the parties entered into a supplemental agreement for the consideration of $500 wherein it was agreed that the date of payment was extended from the 7th day of September, 1955 to the 7th day of Octover, 1955.
Plaintiff asserts that she informed the defendants at the time of the execution of the original contract that she intended to construct a dwelling upon the lot. This is denied by defendants. However, at the time of the supplomental agreement defendants knew that plaintiff was constructing a residence thereon.
When the extension of time had expired, defendants caused a further notice of cancellation
to be sent to the escrow holder. As a result, defendants' deed held in escrow by the title company was returned and the escrow closed. Subsequently, on January 15, 1956, defendants took possession of the premises. At that time and to the time of the trial, plaintiff had paid nothing on the construction of the house.
It is the contention of the plaintiff that the forfeiture of her interest in the real [89 Ariz. 237] estate falls within the purview of A.R.S. § 33-741. This section provides:
' § 33-741. Forfeiture of interest of purchaser in default under contract for conveyance of real property
'A. Forfeiture of the interest of a purchaser in default under a contract for conveyance of real property may be enforced only after expiration of the following periods after the default:
'1. When the purchaser has paid less than twenty per cent of the purchase price, thirty days.
'2. When the purchaser has paid twenty per cent, or more, but less than thirty per cent of the ...