Mason v. Hasso

• Decision Date: 13 December 1961
• Docket Number: No. 7157,7157
• Citation: 367 P.2d 1,90 Ariz. 126
• Parties: Chester H. MASON and Mary Mason, husband and wife; L. Den Steffey and LvaFern Steffey, husband and wife, Appellants, v. Ernest HASSO and Dorothy Hasso, husband and wife, Appellees.
• Court: Arizona Supreme Court

Page 1

367 P.2d 1

90 Ariz. 126

Chester H. MASON and Mary Mason, husband and wife; L. Den Steffey and LvaFern Steffey, husband and wife, Appellants, v. Ernest HASSO and Dorothy Hasso, husband and wife, Appellees.

No. 7157.

Supreme Court of Arizona, In Banc.

Dec. 13, 1961.

Mahoney & Vincent, Florence, and, beverly J. McConnell, Phoenix, for appellants.

Reed, Wood & Platt and Gove L. Allen, Coolidge, for appellees.

JENNINGS, Justice.

This is an appeal from an action to quiet title to certain real property situated in Pinal County, Arizona. Following is the agreed statement of facts in brief: On the 23rd day of March, 1954, plaintiffs Ernest Hasso and Dorothy Hasso, hereinafter referred to as appellees, entered into an agreement with the defendants, L. Dean Steffey and Iva Fern Steffey, hereinafter referred to as the Steffeys, to purchase from the said Steffeys, together with other property, the following described property, to wit:

The South Half (S1/2) of the West Half (W1/2) of Section Thirty-one (31), Township One (1) North, Range Eight (8) East of the G. & S. R. B. & N., Pinal County, Arizona, recorded in the office of the County Recorder of Pinal County, Arizona, in Docket 102 at Page 526 thereof.

Pursuant to said agreement an escrow was on that date set up with the Phoenix Title & Trust Company, Mesa, Arizona, which escrow is still pending and in full force and effect.

On the same date Hassos (appellees) entered into an agreement to sell the abovedescribed property to Chester H. Mason and Mary Mason, husband and wife, hereinafter referred to as appellants. No escrow was set up for this second agreement. The agreement provided that $100 was to be paid down, with a balance of $400 plus 5% interest to be paid on the down payment. The balance $1,750 was to be paid annually in installments of $350 or more plus 5% interest the first two years on the unpaid balance and 6% interest thereafter until the total purchase price of $2,250 was paid.

Upon execution of the agreement appellants paid to appellees the sum of $100. No payments on either principal, interest or taxes have been made by appellants since that time.

In April of 1955 (more than one year after execution of the agreement) appellants wrote a letter to appellees which read in part as follows:

'It would be impossible for us to go thru with the property deal and we are very sorry in more ways than one. We certainly have failed in our end of that bargain but I assure you we didn't intend for it to turn out this way. We had so many plans for that property and maybe if you don't sell it we can make new plans later when we have money before we plan anything. * * *'

No communication, either oral or written, was had between the parties until February 25, 1957 (almost two years later) when the appellees wrote to the appellants as follows:

'* * * I would like to know if you could take care of your present and past payments with your May 1st payment and your past payments of principle and interest * * *. If not, then please send me the papers * * * made between ourselves and I will return your down payment. Please leave me know soon if you can take care of your obligation.'

Thereafter, and prior to the 1st of May, 1957, the appellants began negotiations with the Steffeys for the purchase by the latter of the property above described. No communication was had between the appellees and the appellants after the letter of February 25, 1957, until approximately the 10th day of April 1957, at which time the appellants contacted the appellees by telephone and advised them of the potential sale to the Steffeys.

On approximately the 11th day of April, 1957, the appellants entered into an agreement to sell the property to the Steffeys. The sum of $1,000 was deposited in escrow with the Surety Title & Trust Company of Florence, Arizona. On the 29th of October, 1957, an additional $2,500 was deposited by the Steffeys leaving a total of $3,500 on deposit. It is evident that appellants expected the payments by the Steffeys to discharge appellants' obligations to appellees.

By the time this action was filed April 25, 1957 (more than three years after the date of the agreement between appellants and appellees) the property valuation had risen from $2,250 to $8,000.

The issues before the trial court were whether the appellees were entitled to have their title to the real property in question quieted, subject to the contract of sale from the Steffeys or whether the contract of sale between the appellants and appellees was still in full force and effect.

The Steffeys did not file a counterclaim. Their answer, filed separately from appellants merely stated that the appellants had entered into an agreement to sell the property to the Steffeys and requested the return of the money they had deposited or the performance of the agreement with the appellants. The Steffeys were neither present in person nor represented by counsel on the trial of this action.

From a judgment ordering refund of the Steffeys' escrow money and declaring appellees the owners of a contract of purchase from the Steffeys entitling them to possession of the property, appellants claim error on the following grounds: (1) There was no evidence of the plaintiffs' offer to or ability to perform, (2) there was no evidence of plaintiffs' intention to declare a forfeiture of the defendants' interest prior to the time of suit, (3) there was no evidence of plaintiffs' acceptance of defendants' offer to rescind, and (4) there was no evidence of a waiver of or abandonment of defendants' interest in the property or rights under the contract.

It is unnecessary to consider item (1) above for it was not supported by proposition of law or by discussion. The words abandonment and forfeiture are used without much distinction in appellants' argument. Abandonment means the act of intentionally and voluntarily relinquishing a known right absolutely and without reference to any particular person or purpose. 1 Ma.Jur., Abandonment, § 1, p. 4. Forfeiture is distinguished from abandonment in that it is enforced and involuntary and occurs without regard to intention. In the case of Gila Water Co. v. Green, 29 Ariz. 304, 241 P. 307, 308, this Court held:

'* * * There is a plain, fundamental distinction between an abandonment and a forfeiture. While to create an abandonment there must necessarily be an intention to abandon, yet such an intention is not an essential element of forfeiture in that there can be a forfeiture against and contrary to the intention of the party alleged to have forfeited.'

On this same subject in the case of City of Tucson v. koerber, 82 Ariz. 347, 313 P.2d 411, 418, we stated.

'* * * Abandonment involves an intention to abandon, together with an act or an omission to act by which such intention is apparently carried into effect, * * *.'

It is axiomatic that the law abhors a forefeiture, and since in the instant case an abandonment by the appellants occurred in point of time prior to any action from appellees to repossess the property, we need not discuss the arguments concerning forfeiture.

Plainly appellants' failure to pay even the balance of the down payment called for in the agreement, their failure to make future yearly payments on the principal and interest, coupled with their unambiguous letter in April, 1955, conclusively signified in word and deed a complete abandonment of the property. In fact the appellants neither paid nor tendered to the appellees any payments on the principal or interest, neither paid not tendered any taxes assessed against the property, made no claim to the property, and evidence no interest therein until April, 1957, when they found the Steffeys were...