213 P. 574 | Ariz. | 1923
A petition for a rehearing in this canse has been filed, but a reargument, we feel, would serve no useful purpose. A careful examination of the record, however, convinces us that the finding that Sawyer refused to surrender possession of the land on March 28, 1920, is not supported by the testimony. At no time after the land was sold to appellee was Sawyer in possession of it, except as the agent of the purchaser, who employed him to look after and manage it, and his objection to leaving it, according to his testimony, was due to the fact that appellee at that time was indebted to him many hundreds of dollars for these services. This was long after the land had been sold to appellee and deeds conveying title delivered. His refusal to surrender possession or leave the premises would not excuse appellee’s failure to pay the consideration for the property. And the fact that the exchange of the $40,000 in bonds, "all of the old issue, for $40,000 of the new issue of $250,000, had not then been made, even though such omission was due to the fact that Sawyer and Parks, as president and secretary of the company, had failed
Hence the judgment heretofore entered is modified by directing that the interest coupons of the bonds of the old issue in the sum of $40,000 be paid to the date these bonds are exchanged for the new, rather than up to March 28, 1920, as heretofore ordered, and that all interest coupons on the new bonds due by that date be detached before the exchange.
It is further ordered that appellee pay the interest due and exchange the bonds within ninety days from this date, and if at the end of this period said interest has not been paid or the 'bonds exchanged it is further ordered that, upon the filing in this court of the affidavit of Sawyer or the proper official of appellant company stating this fact, this case be remanded to the superior court of Yavapai county, and that said court enter an order foreclosing the bonds sued on herein.
ROSS and LYMAN, JJ., concur.