
    Lyman Rhoades and Others, Appellants, v. Nelson H. Freeman and Harry Barber, Respondents.
    
      Ejectment—a vendee cannot dispute the title of Ids vender unless he swrenders possession— his equities and remedies — estoppel—ratification — intestacy presumed'as to real estate—right of a tenant in common to bring ejectment.
    
    A person who enters into the possession of land under a contract to purchase it, cannot, without surrendering the possession- thus obtained, attack or disputa the title of his vendor.
    The purchaser cannot maintain possession and, at the same time, refuse to perform his part of the contract, upon the ground that the vendor cannot give a good title, or that some one else has the title, or that- his own possession has. ripened into an adverse title. • .
    If the purchaser is in default in his payment and the vendor brings ejectment,, the purchaser may set up any equitable defense which he may have.
    
      The purchaser may tender full performance and ask a judgment that the vendor convey to him, or he may show that he defaulted because the vendor was unable to perform, and he may ask that, upon his surrender of possession, the vendor repay him what he has paid, or he may set up any other equity arising -out of the contract.
    In an action of ejectment the plaintiffs showed a conveyance of the premises in question, from Gouverneur Morris to Lyman Rhoades, William H. Weed and •Charles W. Weed, dated August 1, 1836, but did not show that either Morris or any of his grantees ever had possession of the premises. On January 1, 1857, a written contract of sale of the premises, in which “ Charles W. Weed, assignee, etc.,” was named as party of the first part, was executed to one Collins Barnes, and subsequently one Gideon Freeman, the person under whom the defendants claimed and who had acquired the' rights of Collins Barnes, entered' into possession of the premises under a- contract of sale, also executed by “Charles W. Weed, assignee, etc.” Part of the purchase price' mentioned in both of the contracts executed by Charles W. Weed, assignee, etc., had never been paid.
    There was no evidence in the case that Rhoades, William H. Weed and Charles W. Weed ever owned the premises as co-partners or that Charles W. Weed had any authority to sell any one’s interest in the premises in question, except his own. The plaintiffs, three of whom were heirs at law of Rhoades, five, heirs at law of William H. Weed and two, heirs at law of Charles W. Weed, failed to prove title in themselves.
    
      Held, that none of the plaintiffs could prevail, except those who claimed as descendants of Charles W. Weed. That the words “assignee, etc.,” annexed to the name of Charles W. Weed in the contract of sale, were merely descriptive of the person, and that when he executed the contracts he assumed to act for himself alone, and to convey the whole title;
    That, therefore, the defendants were not, as to such of the plaintiffs as .claimed under Rhoades and William H. Weed, estopped from setting up title in themselves or in another, hut that they were estopped from setting up such title as to the plaintiffs who claimed under Charles W. Weed, as such persons stood in the position of vendors to Gideon Freeman and the persons claiming under him;
    That the bringing of the action by .the plaintiffs, other than .those who claimed under Charles W. Weed, could not amount to a ratification of the contracts of sale made by Charles W. Weed, for the reason that, as Charles W. Weed never assumed to contract for their ancestors or for them, there was no contract in existence which they could ratify.
    It appeared that of the two descendants of Charles W. Weed, one Charles H. Dougliss was a son of a deceased daughter of Weed, who, by her will, devised all her property to the father of Charles H. Dougliss. The father died and left a will, the terms of which were not proved. The other plaintiff, Martha E. Weed, was a daughter of Charles W. Weed.
    
      Held, that Charles H. Dougliss had not shown that he succeeded to the title nor to any part of the title which Charles W. Weed had in the premises;
    
      That in the case of Martha B. Weed, it must he presumed, in the absence of proof that Charles W. Weed left a will, that he died intestate, and that she inherited her legal share'of his rights in the premises;
    That, consequently, Martha E. Weed had a right to maintain an action to recover her share of the interest of' Charles W. Weed in the premises; which interest, as agaihstitiie defendants, must be deemed to cover the whole title;
    That the action was .maintainable by Martha B. Weed as a tenant in common under section 1500 of the Code of Civil Procedure, and that it was erroneous to dismiss! the complaint as against her. ' ■ ■
    Appeal by the plaintiffs, Lyman Rhoades and others, fróm a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the -county of St. Lawrence on the 10th day of May^ 1895, upon a dismissal of the complaint directed by the court after a trial before the court and a jury at the St. Lawrence Circuit.
    
      A. X. Parker and Henry Purcell, for the appellants.
    
      Earl .Bancroft and Watson M. Rogers, for the respondents.
   Packer, P. J .:

The action is ejectment. It is averred in the -complaint that each of the several plaintiffs is the owner in tee of an undivided interest in the premises in question, the interest of each being specified,, and that the diefendants unlawfully withhold the possession thereof from them.- The answer is substantially a general denial of plaintiffs* ownership and 'a claim'of title in the defendants by adverse user. Oh the trial the plaintiffs did not prove any title intllenlselves. They shewed a conveyance from Gouverneur Morris to Lyman Rhoades, William H. Weed and Charles W. Weed of a tract of land which includes the premises in question, dated August 1, 1836. And it appears that three of the plaintiffs are heirs at law of said Rhoades, five of them heirs at law. of said William H. Weed, and two of them heirs at law of said Charles W. Weed. But they did not show that Morris ever had any title to or possession of such land, or that ally of his said grantees ever took possession of the same. It appeared that the defendants had been in possession-of the land for many years, and the plaintiffs, therefore, utterly failed to show any title to the lands or a right to eject the defendants, unless such ' title or right can be claimed from the circumstances under which said defendants went into, possession, and have since held the same.

Gideon Freeman went into possession of the land under a written contract for the purchase of the same. In such contract “ Charles W. Weed, assignee, &c.,” as party of the first part, agrees to sell to said Freeman, as party of the second part, all of certain premises therein described, which description includes the land in question; and such contract is signed by Charles W. Weed, assignee, etc., by C. A. Parker, as his attorney, and is dated November 1, 1860.

A contract for the sale of the same premises had previously been executed by Charles W. Weed, assignee, etc., to one Collins Barnes, dated January 1, 1857. Such contract was signed by Charles W. Weed, assignee, by E. Dodge, as his attorney. All of Collins Barnes’ interest in such contract was subsequently acquired by Gideon Freeman. On February 13, 1873, Gideon Freeman contracted to sell the premises so contracted to be sold to him, to the defendant Nelson H. Freeman, and subsequently, on December 16, 1873, executed to him a quit-claim deed of the same. When Nelson H. Freeman took his contract from Gideon Freeman he took the possession which Gideon Freeman then had, and has ever since retained the same. Under the contract which Gideon Freeman took, through Parker as attorney, he was to pay $881.79 for the whole premises so purchased. No more than $213 has been paid upon that contract. Neither was the purchase price of the contract executed to Collins Barnes through Dodge as attorney ever paid in full.

The plaintiffs claim that Nelson H. Freeman, as the grantee of Gideon Freeman, is in the position of a vendee of the premises, having taken the possession thereof under the contract to Gideon Freeman ; that he is, therefore, estopped from disputing the title of Gideon Freeman’s vendor, and that the possession which he thus obtained cannot be the basis of a possession adverse to such vendor. This claim, I think, is clearly correct. I understand it to be well settled that one who goes into possession of land under a contract to purchase the same cannot attack or dispute the title of his vendor, without surrendering the possession which he thus obtained. .If he refuses to. perform the contract on the ground that the vendor cannot give a good title, he cannot do so and still hold the possession. If he is in default in his payments, for that reason, or for any other, and the vendor brings ejectment against him, he may by answer setup any equitable defense he may have. He may tender full performance and ask a judgment that the vendor convey to him, or he may show that he has defaultéd owing to the vendor’s inability to perform, and he may ask that, upon his surrender of possession, he be repaid the portion of the purchase price which he has already paid; or he may set up any other equity arising to him out of the contract, and the court will try the issue so tendered by the answer. And although the action is in form one of ejectment, it will adjust the equities between them as the facts require; but being in. default he cannot defend against an ejectment by the vendor, on the ground that some one other than the vendor has the title, or that tlie possession which he took under his contract has ripened into an adverse title in himself.. (Jackson ex dem. Marvin & Others v. Hotchkiss, 6 Cow. 401; Hotaling v. Hotaling, 47 Barb. 163; Risley v. Rice, 40 Hun,. 585, 586; Pierce v. Tuttle, 53 Barb. 155; Greene v. Couse, 127 N. Y. 386 ; Tompkins v. Hyatt, 28 id. 347.)

But the serious question in this case is whether these plaintiffs stand in the position of vendor to the defendants. Have they succeeded to the title and interest of the defendants’ vendors ? Did Gideon Freeman acquire the possession and contract to purchase from those whom the plaintiffs now claim to represent ? There is no evidence in the case showing that Rhoades, William H. Weed and Charles W. Weed ever owned the premises as co-partners, and there is no evidence showing any authority in Charles W. Weed to contract to sell any one’s interest in the property except his own. Indeed, there is no evidence in the case tú show that they, or any of them, had any title whatever to the property, except so far as it may be presumed by way of estoppel against Gideon Freeman by reason of the contracts above referred to.' We have no right, therefore, to start- with the assumption that the three owned the property, and that, therefore, Charles W.Weed was acting for them as well as for himself. There is not a particle of' evidence to show that either of them, except Charles W. Weed, ever made any claim to the property or ever knew of the existence of the deed from Morris to them; nor does Charles W. Weed in the contract assume to sell any interest belonging: to them. He contracts to sell the whole title as if he owned it. He assumes to act for himself only, and Gideon Freeman contracted with him alone. Rhoades died in 1849, and, therefore, it is clear that, in making the contracts above alluded to, Charles W. "Weed was not. acting for him, nor for a firm of which he was a member. It is true that Weed is described as ‘ assignee,” but the plaintiffs’ counsel claim that that is a mere deseriptio persones, and, I think, it must be so treated! Clearly, it is not any evidence that he was claiming to act for Rhoades, Weed and Weed, nor does it indicate that he was acting for any one but himself.

I think it very clear that Gideon Freeman contracted with Charles W. Weed as the owner of the premises and received his possession from him as such owner. He was. the vendor and, as against him, Gideon Freeman,, and also the defendant Nelson H. Freeman, re estopped from setting up title in another or in -themselves. Whatever idea Nelson .H. Freeman may have had of Charles W. Weed’s title when he took the deed .from Gideon Freeman, the possession which he thus acquired came from Charles W. Weed, and so long as he holds it he must hold it in subordination to Charles W. Weed’s claim. (Tompkins v. Snow, 63 Barb. 525; Dyke v. Spargur, 143 N. Y. 651, 655.) .

If Charles W. Weed were the plaintiff in this action, .1 do not see how Nelson H. Freeman could defend against his claim of ownership "nor maintain any such defense as he has. set up in his answer. There may be equities in the case which the court would adjust had he set them up, but he has not done so. He relies for his defense upon the sole claim that none of the plaintiffs have any title to the premises and that he himself has the title by adverse user. As. against Charles W. Weed, and those succeeding to his rights, he is estopped from maintaining such a defense, but as against any person other than them he has the right to rely on his possession and.put the claimants to proof of their title.

The evidence discloses that all of the plaintiffs except two, viz., Martha E. Weed and Charles H. Dougliss, claim to be .owners and interested in the premises as heirs at law of either Lyman Rhoades or William W. Weed. In that character they do not stand in the position of vendors to the defendants. They have not shown that Gideon Freeman contracted to purchase from their ancestors, nor that he derived his possession from them. And having utterly failed to show any title in their ancestors or in themselves, they have failed to maintain the claim which they make in this action. There is no force in the suggestion that in bringing this action such plaintiffs have ratified the contract made by Charles W. Weed, and, therefore, stand as vendors. to the defendants. It is a sufficient answer that Charles W. Weed never assumed to contract for their ancestors for them,, and hence there is no contract for them to ratify.

The question remains as to what effect the fact that two of the descendants of Charles W. Weed are plaintiffs herein should have in the disposition of this case. One of these descendants, Charles;-H. DotiglisS, is a son of a daughter of Charles W. Weed. His mother is dead atid, a$ he testified, by will gave all her property to her husband, -his father. The father is dead, leaving a will. ITow he disposed of this property does not appear. Under such circumstances it is quite clear that Charles H. Dougliss has not shown that he succeeded to the title, or any paid thereof, which Charles W. W eed had in the premises. As-to these plaintiffs, therefore, the order dismissing the complaint was clearly right. The other plaintiff, Martha E. Weed, is a daughter of Charles W. Weed, and inasmuch as we must assume that he died intestate (Mitchell v. Thorne, 134 N. Y. 536) she inherited a share of his rights in these premises. In the complaint she claims that she owns an undivided one-twelfth of them. The evidence shows that she has inherited at least an undivided one-twelfth of Charles W... Weed’s interest therein, which interest as against these defendants must be deemed to be the whole title. The Code of Civil Procedure (§ 1500) allows a person entitled to the qiossession of land as a tenant in common to. maintain an action to recover his undivided share therein. - Under this section, therefore, it seems that the plaintiff Martha E.; Weed made out a prima faeie case against these defendants for such undivided share of the premises as she inherited from Charles W- Weed, and that the dismissal of the complaint as against her was an error,

The judgment as ¿gainst Martha-E. Weed is, therefore, reversed, with costs, and as against all the other plaintiffs it is affirmed, with costs. .

All concurred.

Judgment against Martha E. Weed reversed, and a new trial granted, costs to abide the event, and as against all the other plaintiffs, judgment affirmed, with costs.  