
    Plett v. Willson et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1888.)
    1. Vendor and Vendee—Foreclosing Contract—Limitation of Action.
    Code Civil Proc. § 882, which requires an action upon a contract, obligation, or liability, express or implied, to be brought within six years, does not apply to an action to foreclose an unsealed contract for the sale of land against a vendee in possession. Follett, J., dissenting.
    2. Same.
    The limitation applicable to such action is that provided for in section 388, which declares that an action, the limitation of which is not specially provided for, must he commenced within 10 years after the cause of action accrues.
    Appeal from special term, Oneida county.
    Action commenced January 8, 1887, by Maurice Plett against Fowler Willson, Jr., and the administratrix of Fowler Willson, Sr., deceased, to foreclose an unsealed contract for the sale of land by plaintiff to the Willsons in 1870. The land was to be paid for in annual installments, with interest, the last payment falling due April 1, 1880, on which date plaintiff was to execute a warranty deed. The vendees entered into immediate possession until 1875, when Fowler Willson, Jr., assigned his interest to Fowler Willson, Sr. The latter died in 1877, and his widow and heirs took possession and were in possession at the time of the trial. Payments were made annually, except for the year 1877, until April 3, 1880, when the last one, except $192, paid under an order of court in 1887, was made. The prayer was to foreclose the contract, and apply the proceeds to the payment of the balance due, and for personal judgment for the deficiency. Defendants pleaded the statute of six years’ limitation, and from a decree dismissing the complaint plaintiff appeals. The cause was heard in this court on a ease containing all the evidence.
    Code Civil Proc. § 380, provides that “the following actions must be commenced within the following periods after cause of action has accrued:” “Sec. 382. Within six years: (1) An action upon a contract obligation or liability, express or implied, except a j udgment or sealed instrument. ” “ Sec. 389. An action, the limitation of which is not specially prescribed in this or the last title, must be com,menced within ten years after the cause of action accrues.” The titles referred to are chapter 4, tit. 1, “Actions for the Recovery of Real Property,” and title 2, “Actions Other than for the Recovery of Real Property. ”
    Argued before Hardin, P. J., and Follett and Martin, JJ.
    
      E. O. Warden, for appellant. H. 8. Willson, for respondents.
   Per Curiam.

Under the contract the vendees became the owners of the land, and trustees for the payment of the contract price; and the vendor became the owner "of the purchase price, retaining the legal title as trustee for the vendees, and as security for the payment of the purchase price. Sanders v. Aldrich, 25 Barb. 63; 2 Story, Eq. Jur. § 789; Pom. Eq. Jur. §§ 372, 1161; Thomson v. Smith, 63 N. Y. 303. This interest of the vendor is frequently called the “vendor’s lien;” but it is more, as he holds the legal title, of which he cannot be divested by the vendee until the purchase price is paid, unless the land is held adversely for 20 years. 3 Pom. Eq. Jur. § 1261; Freeson v. Bissell, 63 N. Y. 170. The right to foreclose a mortgage upon real' estate, given to secure the payment of a promissory note, is not barred because an action on the note is barred. Heyer v. Pruyn, 7 Paige, 465; Pratt v. Huggins, 29 Barb. 277; Gillette v. Smith, 18 Hun, 10; Thayer v. Mann, 19 Pick. 535; Belknap v. Gleason, 11 Conn. 160; 14 Alb. Law J. 209; 2 Jones, Mortg. §§ 1203-1205. In the ease of a mortgage, a lien is created to secure a debt; but, in the case of an executory sale, the entire legal title is reserved until the purchase price is paid. There seems to be no reason why the same statute of limitations should not apply to both cases. When the vendee, or his successor in interest, continues in possession, claiming under an executory contract, an action to foreclose the contract is not barred by the lapse of six years between the date of the last payment (all payments being due) and the date of the commencement of the action. Lewis v. Hawkins, 23 Wall. 119; Hardin v. Boyd, 113 U. S. 756, 5 Sup. Ct. Rep. 771; Hopkins v. Cockerell, 2 Grat. 88; Wood, Lim. § 232, and cases there cited. The fact that this contract was not sealed, does not diminish the legal title which remained in the vendor, nor render it less efficient as a security.

It is to be observed that there is no evidence that either of the parties to the contract have formed, much less expressed, an intent to rescind the contract. On the contrary, the defendants are now in possession, claiming under no right except that conferred by the contract. This is an action, the limitation of which is not specially prescribed in title 1 or 2 of chapter 4 of the Code of Civil Procedure, and it could be begun within 10 years after the cause of action had accrued. Code Civil Proc. § 388. There are many authorities to the effect that the relations between a vendor and a vendee, in possession under an executory contract, create an express trust, which continues until the contract is mutually performed or is rescinded by the one or the other, and that the statute never begins to run so long as the relations exist; but it is not necessary to go so far in this case, for, assuming that the plaintiff’s cause of action accrued (within the meaning of the sections of the Code which limit the time within which actions must be begun) April 3, 1880, the date of the last payment, and the statute then began to run, 10 years had not elapsed. Borst v. Corey, 15 N. Y. 505, is not in point. ' In that case the land had been conveyed, and the grantor had what is known as the vendor’s equitable lien for the unpaid purchase money not otherwise secured. This lien never becomes a legal one until declared by a court, and, when an action for the recovery of the purchase price is barred, there is nothing for a court of equity to lay hold of. There is no remaining title in the vendor, as in the case at bar. Our attention is called to the cases in which it is held that, where there are concurrent and perfect remedies at law and in equity, a suit in equity is barred in the same time that an action at law is barred. The vendor had three remedies: (1) Ejectment, a legal action for the recovery of the land; {2) to foreclose the contract; (3) to recover the debt. It cannot, we think, be successfully claimed that an action of ejectment would be barred within less than 20 years. The views which we have taken of this case render it unnecessary to consider the relevancy of the eases in which it is held that actions for the specific performance of executory contracts for the sale of lands may, at least, be maintained by either party within 10 years after' the last payment. The judgment is reversed, and a new trial is ordered, with costs to abide the event.

Eollett, J.,

(dissenting.) The vendor had three remedies: (1) Ejectment, a legal action for the recovery of the land; (2) to foreclose the contract; {3) to recover the debt,—the first in disaffirmance, and the last two in affirmance, of the contract. It was twice held by the court of appeals (Miner v. Beekman, 50 N. Y. 337; Hubbell v. Sibley, Id. 468) that only legal actions for the recovery of land were within section 78 of the old Code, the 20-years section, which is, in legal effect, identical with section 365 of the present Code, and this action is not within the 20-years section of the present Lode. The result sought to be reached is the enforcement of an obligation or liability to pay the agreed price for the land arising out of an unsealed express contract, and the time within which such an action must be begun is prescribed by sections 380 and 382 of the Code of Civil Procedure. The cause of action accrued in April, 1880, and the action was begun in January, 1887, and it is barred by the lapse of six years. The plaintiff must be left to an action of ejectment. The judgment should be affirmed, with costs.

Judgment reversed, and a new trial ordered, with costs to abide the event.  