
    William W. Bryan, Individually and as Executor, etc., of Susan W. Bryan, Deceased, Respondent, v. Patrick H. Carroll and Others, Defendants, Impleaded with John M. Carroll, Appellant.
    Third Department,
    November 13, 1907.
    Roal property — contract of sale — allegation stating action to enforce same — right of executrix to sell lands purchased on foreclosure.
    An executrix, having also a life estate, entered into a contract with one in possesr sion of mortgaged premises to convey to him if she should become the purchaser on a foreclosure then pending, the proposed grantee to remain in possession and give back a purchase money mortgage. The executrix became purchaser on the foreclosure sale but did not receive a deed although entitled thereto, and on her death she bequeathed all her estate to a daughter (the plaintiff’s predecessor in title) who also took as remainderman under the prior will. The other remainderman under the prior will assigned to the plaintiff’s predecessor all her interest in said contract, which said assignment was ratified by the surviving executor of the prior will. The plaintiff’s predecessor in title thereafter received the deed in the foreclosure action, and after her death it was tendered by her executor, who was empowered to sell lands, to the heirs of the party who had promised to purchase from the deceased executrix, demanding the balance due, which was refused, said heirs still remaining in possession of the property.
    
      Held, that a complaint setting forth the facts aforesaid stated a good cause of action to enforce a contract of sale of land and to sell the same for the payment of the balance due;
    That as the defendants’ ancestor had remained in possession of the property and made payments on account of the contract, the defendants could not claim a failure to perform on the part of the original vendor, but that both parties took the equitable status of their predecessors;
    That the executrix having authority to foreclose the mortgage had also power to dispose of the property which came to the estate by virtue of such foreclosure,, the same standing in the place of the mortgage;.
    
      That the contract to convey to the defendants’ predecessor did not lack mutuality, for as the executrix was entitled to the deed she. was an equitable owner and became bound to convey when, the vendee in possession under the contract had made payments thereon; • '
    That the action was properly brought in equity.
    Appeal by the defendant, "John M. Carroll, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on tlie'lst day of March, 1907, upon the decision of the court rendered after a trial at the Saratoga Special Term overruling the- said defendant’s demurrer to the complaint. : -
    The demurrer challenges the' complaint on the ground that it does not state facts sufficient to constitute a cause of action. The judgment demanded is that the defendants be barred and foreclosed of all right, claim, lien, and equity of redemption in certain real estate described in-the complaint and that the said real estate be sold to satisfy the amount due the plaintiff by reason of the facts alleged. Spell facts chronologically .stated are substantially as follows: In 1868 Daniel Moore executed to William L. F. Warren a mortgage on said real estate ;■ thereafter Patrick J., Carroll went into possession of said premises under said Moore and was so in possession on January 24, 1881, when the contract hereafter described wás executed; in 1875 said William L. F. Warren died leaving a last will and testament wherein Eliza Warren and John A. Bryan were named as executors and wherein all his residuary estate was devised and bequeathed to his widow, said Eliza Warren, for life, with the remainder after death to her two daughters, Susan W. Bryan and Elizabeth B. W. Westcott; letters testamentary under said will were issued to said Eliza Warren'in the year 1875, but -not at that time to said John A- Bryan, the other executor named in the will; in 1880 Eliza Warren, as such executrix, instituted an action' for the foreclosure of said mortgage-' making Patrick J. Carroll a defendant therein; pending such action and on January 24, 1881, said Eliza Warren and said Patrick J. ■ Carroll made a contract under seal whereby said Eliza Warren was to/sell and convey to said Carroll for a price therein specified the said premises when she should complete the foreclosure of the said mortgage thereon and should become the owner of the premises by purchase at the foreclosure sale, and said Carroll was to remain in the possession of said premises and execute a bond and mortgage' to the said Eliza Warren for the amount he agreed to pay therefor on receiving from her the deed provided by said agreement; in furtherance of said last-mentioned contract the said Carroll entered into and remained in possession of such premises until he died intestate in August, 1888, and since that time his heirs at law, of whom the appellant is one, have remained in such possession; in May, 1881, said Eliza Warren became the purchaser of said premises under the judgment of foreclosure entered in the action to foreclose said mortgage as aforesaid, but did not receive a deed of said premises, although entitled thereto; in 1886 said Eliza Warren died leaving a last will and testament, wherein she devised and bequeathed all of her estate to said Susan W. Bryan,'and appointed William W. Bryan and said Susan W. Bryan executors thereof, which will was admitted to probate and the executors therein qualified as.such; in 1888 letters testamentary under the will of said William L. F. Warren, deceased, were issued to John A. Bryan, the remaining executor named in said will after the death of said Eliza Warren; in 1888 said Elizabeth B. W. Westcott, by an instrument under seal, assigned and transferred to said Susan W. Bryan all her right, title and'interest in and to said contract between said Eliza Warren and Patrick J. Carroll; and at the same time said John A. Bryan, as executor of the will of William L. F. Warren, deceased, and said Susan W. Bryan and William W. Bryan, as executors.of the will of Eliza Warren, deceased, by an instrument under seal, ratified and confirmed the said assignment of the said Elizabeth B. W. Westcott to said Susan W. Bryan, and also assigned, and conveyed to said Susan. W. Bryan all interests which the said estates separately and respectively had in and to such contract; in 1890 said Susan W. Bryan received the deed of said premises under the judgment in tlfe said foreclosure action; in 1899 said Susan W. Bryan died leaving a last will and testament, wherein the plaintiff, said William W. Bryan, was named as executor and empowered with the sale of real estate, which will has been duly admitted to probate and letters testamentary issued to said William W. Bryan. It is further alleged in the complaint, that while in possession of said premises under said contract of January 24, 1881, and from that time down to October 4, 1886, said Patrick J. Carroll made payments on account of the said contract, and became entitled to credits for the value of services, so that at the latter date there was due from him on account of said contract $419.58, no part of which has been paid, and, that since said last-mentioned date of October 4, 1886, he and those claiming under him have occupied the said premises without compensation, and that said Eliza Warren, prior to her death, and said Susan W. Bryan, after she received the deed of said premises as aforesaid, and the plaintiff since her- death, have offered to fulfill said contract, and that the plaintiff is now able and willing to perform the same, but that the said Patrick J. Carroll, and since his death his heirs,'have refused to perform the same or to relinquish possession of the premises, although in occupation thereof. '
    
      James F. Swanick, for the appellant.
    
      Charles C. Lester, for the respondent.
   Cochrane, J.:

No personal claim is made against the defendants, but plaintiff is seeking to recover out of the property, an amount which the demurrer admits to be unpaid on said contract of January 24, 1881. ..

That the foregoing facts vest the plaintiff with a good cause of action for the relief sought admits of no doubt. Although Mrs. Warren did nbt receive the deed' under the foreclosure sale she became entitled'thereto and was the equitable owner of the property by virtue of such sale. The delivery of the deed to lier was a mere formality, and so far as the facts appear she could at any moment have possessed herself of the same. The rights of the parties as they then existed were that Carroll, by virtue of such contract of January 24, 1881, became the equitable owner of the property and entitled to a deed thereof from Mrs. Warren, and all that the latter had were such rights as she acquired under said contract. The..failure of the parties to consummate such contract was not her fault. According to the complaint she was able to perform her contract with Carroll and offered to do so. Carroll recognized the contract by remaining in possession thereunder, and making payments on account thereof. His successors cannot very well claim that there was a failure to perform on the part of. Mrs. Carroll. When . she died, therefore, the equitable status of the parties was that Carroll was entitled to a deed of the property, and Mrs. Warren had only such rights as were accorded to her by said contract.

Whether such rights belonged to her individually or as the representative of the estate of William L. F. Warren, deceased, in either event they were duly assigned to Susan W. Bryan, plaintiff’s testatrix, by the representatives of the estates both of William L. F. Warren and Eliza Warren respectively, and thereby plaintiff’s right to enforce such contract becomes unquestioned.

We need not indulge in any refinement of reasoning ás to who) strictly speaking, should have received the deed of the property after Mrs. Warren’s death. Under her contract with Carroll she in her lifetime became entitled thereto only for the purpose of transferring the title to him. The deed under the foreclosure judgment might have been executed directly to him in consummation of such contract on his complying with the terms thereof. It was in fact executed to Susan W. Bryan who had succeeded to the rights of Mrs. Warren in said contract, and who recognized Carroll’s right to the property and held the title for his benefit and offered to convey it to him. ISTo other person had any right to the deed save in confirmation of his title. If no deed had been executed it would not change the situation under the circumstances here appearing, but the court would establish the rights of the parties according to their contract. The fact that Mrs.' Bryan received the deed, even if irregular, is inconsequential in view of' the fact that both she in her lifetime and her successor since her death held the title for the benefit of Carroll and his successors. The allegation in the complaint that the residuary legatees under the will of William L. F. Warren, deceased, became entitled, on the death of Mrs. Warren, to a deed of the said premises, is not a statement of fact but a conclusion of the pleader, which, if erroneous, may be disregarded.

It is suggested that Mrs. Warren was not authorized to make the contract in behalf of her decedent’s estate, or to dispose of the property. As incidental to her authority to foreclose the mortgage she also had power to dispose of the property which came to the estate, and which was a part thereof by virtue of such foreclosure^ and which stood in the place of the mortgage.

It is further urged that as the contract was to be effective only in case Mrs. Warren should complete the foreclosure of' the mortgage and become the purchaser of the property at the foreclosure sale, she did not absolutely bind herself to convey ¡the property to Carroll, and that hence the contract lacked mutuality. When Mrs. Warren became the equitable owner and capable of conveying the property, and Carroll was in possession thereof under the contract and made payments thereon, she became obligated to fulfill the contract, and from that time forward, irrespective of the prior status of the parties, the contract has been mutually enforcible. The appellant may. not retain possession of the property without responding to the corresponding obligations resting upon him.

The only relief plaintiff seeks herein is of an equitable nature. With a perfect claim of right under the contract he is endeavoring to enforce, and with the appellant in possession of the property without a shadow of right thereto save under such, contract, a plain case is presented to a court of equity for such relief as is sought.

The interlocutory judgment should be affirmed, with costs,, and with leave to the appellant, on payment of such costs and of the costs in the court below: to withdraw the demurrer and serve an \ answer.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to appellant, on payment of such costs and the costs in the court below, to withdraw demurrer and serve an answer.  