Snyder v. Betsch

• Decision Date: 20 January 1941
• Docket Number: Civil 4292
• Citation: 56 Ariz. 508,109 P.2d 613
• Parties: A. W. SNYDER and FLORENCE E. SNYDER, His Wife, Appellants, v. J. P. BETSCH and BESSIE BETSCH, His Wife, Appellees
• Court: Arizona Supreme Court

109 P.2d 613

56 Ariz. 508

A. W. SNYDER and FLORENCE E. SNYDER, His Wife, Appellants, v. J. P. BETSCH and BESSIE BETSCH, His Wife, Appellees

Civil No. 4292

Supreme Court of Arizona

January 20, 1941

APPEAL from a judgment of the Superior Court of the County of Maricopa. Arthur T. LaPrade, Judge. Judgment affirmed.

Mr. M C. Burk, for Appellants.

Mr. M L. Ollerton, for Appellees.

OPINION

ROSS, J.

J. P Betsch and Bessie Betsch, his wife, brought this action against A. W. Snyder and Florence E. Snyder, his wife, to recover the possession of the west 190 feet of the north 660.2 feet of the NE 1/4 of SW 1/4, and the west 190 feet of the south 33 feet of the SE 1/4 of the NW 1/4 of Section 28, Township 1 North, Range 3 East, Gila and Salt River Base and Meridian, Maricopa county, Arizona.

The defendants moved for judgment upon the ground that the complaint failed to state a claim upon which relief could be granted. This motion was denied, whereupon defendants filed their answer and plaintiffs raised the question of its sufficiency to state any defense to their complaint by moving for judgment on the pleadings, which motion was granted and judgment entered in favor of plaintiffs.

Defendants have appealed and contend it was error for the court to deny their motion and to grant plaintiffs' motion for judgment. We first observe that the parties followed the new Rules of Civil Procedure by employing motions instead of demurrers to test each other's pleadings. Secs. 21-429 and 21-431, Arizona Code 1939.

The defendants' motion questioned the sufficiency of the complaint to state a cause of action and, of course, admitted all the material allegations therein. The plaintiffs' motion for judgment on the pleadings required the court to take into consideration the allegations of both the complaint and the answer and to determine therefrom whether the movant was entitled to judgment against his adversary. In determining that question the court necessarily assumed the truth of the material allegations of both pleadings. 49 C.J. 669, sec. 946.

The first question for decision is whether the complaint states a claim entitling plaintiffs to relief. It alleged, in substance, that plaintiffs were, at all times therein mentioned, the owners in fee simple of the described property; that on January 21, 1938, plaintiffs agreed in writing to sell, and defendants to buy, the same for a total purchase price of $1,250, to be paid as follows:

"$50.00 on February 15th, 1938, and $25.00 on the 15th day of each month following until the sum of $300 has been paid; then

"$20.00 each month until the full amount of the purchase price together with interest at the rate of eight per cent per annum had been paid."

It is alleged that the contract contained a provision to the effect that a failure on the part of the defendants to comply with its terms would work a forfeiture of their right and release plaintiffs from all obligation to convey the property. The complaint then states that at the time of its filing, on January 9, 1940, defendants had paid on the purchase price only $375, and that they were in default in payments more than one hundred and twenty days; that plaintiffs elected, on December 19th, to declare a forfeiture and notified defendants thereof and demanded that they vacate said property on or before December 31, 1939. The prayer is for possession and rent from January 1, 1940.

This is a possessory action and may be maintained by any person having a valid subsisting interest in real property, and a right to its immediate possession. Sec. 27-1501. It is true that section 27-1503 provides what the complaint in this kind of action shall contain, but that being procedural is superseded by the Rules of Civil Procedure. Section 21-408 provides:

"(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required...."

We believe the complaint meets the requirements of the statutes and the Rules of Civil Procedure. It shows plaintiffs' interest to be the fee-simple owners of the premises; that defendants' right of possession under the contract was conditioned upon their making monthly payments as stipulated thereunder; that a failure to make such payments effected a forfeiture of all their rights and released plaintiffs from all obligation to convey the property to defendants. It shows plaintiffs elected to declare a forfeiture and notified defendants thereof before bringing this action.

While defendants' possession originally was lawful, having been taken under the terms of the contract, it became tortious and unlawful when they defaulted in their payments and were notified by plaintiffs to vacate. They lost their right of possession when they failed to perform the terms of their contract. in Lewis v. Rouse, 29 Ariz. 156, 240 P. 275, 276, we quoted and approved the language of the court in Burnett v. Caldwell, 9 Wall. 290, 19 L.Ed. 712, defining the respective rights of a vendor and purchaser under like circumstances as here:

"'The legal principles which must govern the determination of the case are all well settled. If the contract in such cases be silent as to possession by the vendee, he is not entitled to it (citing cases). If the contract stipulates for possession by the vendee, or the vendor puts him in possession, he holds as a licensee. The relation of landlord and tenant does not subsist between the parties. The characteristic feature of that relation is wanting. The vendee pays nothing for the enjoyment of the property. The case comes within the category of a license (citing cases). In such cases the vendee cannot dispute the title of the vendor any more than the lessee can question the title of his lessor (citing cases). The assignee of the vendee is as much bound by the estoppel as the vendee himself (citing cases). Upon default in payment of any installment of the purchase money, the possession becomes tortious, and the vendor may at once bring ejectment.'"

It is contended by defendants that plaintiffs should have copied into their complaint the contract in haec verba, or stated its contents in substance. We think this is the general rule, but "unless they materially alter or qualify the provisions alleged to have been breached, parts of the contract sued on which are not essential to the cause of action need not be set forth either literally or substantially." 17 C.J.S.,...