Bowcut v. Jaarsma

653 P.2d 1, 133 Ariz. 544, 1982 Ariz. LEXIS 267
CourtArizona Supreme Court
DecidedSeptember 27, 1982
DocketNo. 15825
StatusPublished
Cited by3 cases

This text of 653 P.2d 1 (Bowcut v. Jaarsma) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bowcut v. Jaarsma, 653 P.2d 1, 133 Ariz. 544, 1982 Ariz. LEXIS 267 (Ark. 1982).

Opinion

HAYS, Justice.

In 1962, Ariel M. and Opal C. Bowcut (hereinafter “sellers”) sold a dairy consisting of real property, cattle and equipment to John and Nellie Jaarsma (hereinafter “buyers”). The parties executed escrow instructions with Guarantee Title and Trust Company1 in March of 1962 for the sale of the property at a price of $110,000. In April the parties signed an agreement for sale which required a down payment of $50,000 with the remaining $60,000 to be paid in monthly installments to sellers through the escrow company.

On September 19, 1977, the escrow company, Continental Service Corporation (hereinafter “Continental”) sent buyers a Notice of Strict Performance indicating that one payment of $501.16 and a “past due service fee” were in arrears. Sellers had requested Continental to send the notice because buyers had become repeatedly delinquent in paying their installments which were due on the 18th day of each month. On October 14, 1977, buyers paid $500, representing the September 1977 installment. The October, November and December 1977 installments were paid on December 19, 1977. The January, February and March 1978 installments were paid on April 12, 1978. The April, May and June 1978 installments were paid on June 30, 1978. Thus, despite receipt of the Notice of Strict Performance, buyers continued for nine months to make delinquent installment payments. After the June 30, 1978 payment, buyers made no additional payment from July 1978 through March 1979.

In March 1979 sellers requested Continental to institute forfeiture proceedings. Continental refused for two reasons. First, because the sale included personal property, Continental said it was unable to calculate the portion of the sales price allocable to the real and personal property. Because it could not determine what portion of the real-property purchase price had been paid, it could not calculate the applicable grace period under A.R.S. § 33-741.2 Second, personal property could not be forfeited under the real estate forfeiture procedure.

Buyers again made no payment prior to the April 18, 1979 payment due date. Because no payment had been received for ten months, sellers, through their attorney, mailed a Notice of Forfeiture on April 19, 1979. The April 19, 1979 notice stated in pertinent part:

“This forfeiture is based upon the buyers [sic] failure to pay those installments of $500.00 becoming due on the 18th day of July, 1978, and a like sum on the 18th day of each month thereafter.
“That by reason of the foregoing the buyers have been in default in their payments since July 18, 1978, plus any unpaid taxes due on said realty, if any.
“The Notice is given pursuant to the terms and provisions of Arizona Revised Statutes section 33-741 and the above numbered escrow and the aforesaid agreement....”

Prior to or on May 10, 1979 Continental received from buyers a check dated April 25, 1979 in the amount of $4,012.00. However, the amount of the check was insufficient to bring the account current, and Continental returned it. At the same time, Continental requested a check for $5,516.60 representing ten past-due payments plus the upcoming May 18, 1979 payment.

On May 10,1979 buyers delivered a check for $6,524.35 to Continental. That same day Continental informed sellers’ attorney that the check had arrived. The attorney [546]*546verbally instructed Continental not to accept the check and confirmed this instruction in a letter dated May 11, 1979.

Sellers brought an action to quiet title. Buyers counterclaimed to set aside the forfeiture and joined Continental as a third-party defendant alleging the failure of Continental to protect buyers in the forfeiture proceeding. Continental cross-claimed against buyers.

The trial judge dismissed all complaints with prejudice and ordered each party to bear its own costs and attorney fees. He ordered the reinstatement of the sales contract pending payment by the buyers of $6,524.35.

Sellers and Continental appealed the decision of the trial court. We have jurisdiction pursuant to A.R.S. § 12-2101 and 17A A.R.S., Rules of Civil Appellate Procedure, rule 19(e).

Two issues are presented on appeal.

1. Was sellers’ forfeiture notice sufficient to terminate automatically buyers’ rights under the sales contract?

2. Was Continental entitled to indemnification for its attorney fees?

Additional facts pertinent to the resolution of these issues will be discussed as necessary.

FORFEITURE

Sellers maintain that former A.R.S. § 33-741 permits a seller to effect a forfeiture by so notifying the buyer without giving the buyer additional time to remedy the default through payment. Section 33-741 provides:

“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 purchase price, sixty days.
“3. When the purchaser has paid thirty per cent, or more, but less than fifty per cent of the purchase price, one hundred and twenty days.
“4. When the purchaser has paid fifty per cent, or more, of the purchase price, nine months.”

The grace periods defined in the statute run from the date of default and not from the date of the termination notice. Glad Tidings Church of America v. Hinkley, 71 Ariz. 306, 226 P.2d 1016 (1951); Alger v. Brighter Days Mining Corp., 63 Ariz. 135, 160 P.2d 346 (1945). Thus, after the requisite period of time under the statute had passed without a single payment being made, the property was subject to forfeiture. In the instant case, ten months had passed without payment from buyers. Under the statute, sellers were not required to grant additional time in which to redeem the property after the notice of forfeiture.

In the instant case, however, our inquiry does not end with the statute. Sellers and buyers executed two separate contracts anticipating or relating to the sale of a dairy farm — Escrow Instructions and an Agreement for Sale. The sellers and buyers executed Escrow Instructions on March 27,1962. The Escrow Instructions provided in pertinent part:

“26. If Buyer is in default under such agreement, Seller may . . . enforce a forfeiture thereof in any lawful manner, including but not limited to, forfeiture by notice as hereinafter provided, but only after the expiration after such default of the following periods [which are the same time periods as listed in A.R.S.

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Cite This Page — Counsel Stack

Bluebook (online)
653 P.2d 1, 133 Ariz. 544, 1982 Ariz. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowcut-v-jaarsma-ariz-1982.