
    Valeria P. Taylor, Resp’t, v. Francis A. Taylor, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    Judgment—Correction of errors in.
    In an action of ejectment defendant answered that by agreement with plaintiff's grantor each was to pay a part of the purchase money and that on repaying plaintiff’s grantor the amount paid by him defendant was entitled to a deed, and that he had fully paid. Ho evidence as to payment was given. The court charged that if defendant went into possession under such an agreement the jury should find for defendant. On a general verdict in his favor judgment was entered for defendant on the issues. Held, that an order modifying the judgment so as to cover all the issues except that of payment was correct.
    Appeal from order modifying a judgment.
    Action of ejectment The defendant alleged in his answer that prior to the purchase of the premises in question it was agreed between himself and plaintiff's grantor Oliver D. Taylor, that they should purchase the land, the title to be taken by Oliver; that each should pay a portion of the purchase money; that defendant should take possession and hold it as his own and that Oliver on being repaid what he had advanced should execute a deed of the premises to defendant; that relying on said agreement defendant took possession, paid a portion of the purchase price and has since performed work, labor and services for Oliver in full payment of the money paid by Oliver.
    No evidence as to such alleged payment was given on the trial, nor was that question submitted to the jury. ■ The case was tried solely on the agreement.
    The jury rendered a general verdict for defendant and judgment was rendered in his favor “ upon the issues in this action.” The order appealed from modifies the judgment so that defendant shall have judgment upon all the issues except the issue raised by the answer that defendant had performed the agreement and made full payment of the purchase money.
    
      E. B & 0. P. Cowles, for app’lt; Thomas II Barowsky {W. A. Abbott, of counsel), for resp’t.
   Barnard, P. J.

The plaintiff sought to recover the possession of the lands in question by ejectment The complaint is in the usual form. The defendant answered, among other things, that the defendant and the plaintiff’s grantor made an agreement prior to the purchase of the property at foreclosure sale, by which the plaintiff’s grantor was to take the title. That each should pay a portion of the purchase money, and that the defendant should repay the plaintiff’s grantor the amount paid by him and be entitled to a deed. The case was tried solely upon this agreement. The jury were told that if there was proven such an agreement, and the defendant entered into and was in possession under it, they must find for the defendant.

The right by plaintiff’s grantor, in case the agreement was found by the jury, to bring an action for the purchase money was stated to the jury as a reason why they should not consider the state of the accounts between the parties. The order appealed from merely corrects the judgment so as to conform to the facts hereby tried and decided in this action.

It would be inequitable and unjust to permit a finding of an agreement deciding that there was nothing due to the plaintiff’s grantor on account of the joint purchase where no evidence was given on the subject.

The order should be affirmed, with costs and disbursements.

Pratt, J., concurs.  