
    Thomas Cornell, Resp’t, v. William Hayden, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed May 3,1889.)
    
    1. Ejectment—Action op—Party in possession under agreement to-purchase—When vendor entitled to recover possession.
    In an action of ejectment to recover possession of certain premises, it appeared that one Hasbrouck, the original owner, entered into a contract to sell and convey the same to one Hayden in consideration of a sum of money; to be paid in equal annual installments. By the terms of the contract. in case of its non-performance, it was to become void, and Hasbrouck was to have the right to enter into possession. Hayden entered into_ possession and occupied the premises for several years, simply paying the interest on the principal, under an oral agreement. Subsequently he transferred all his interest in the contract to one Joseph Hayden, his. brother, who entered into possession and occupied the premises under the same arrangement. Joseph died, leaving him surviving, Mary his widow and three infant children. Thereafter becoming unable to pay the interest, Hasbrouck and Mary mutually abandoned the contract, and the latter acting in behalf of herself and the children, executed an assignment thereof to the plaintiff, who, as a part of the transaction, paid her a certain sum of money, and received a deed of the premises from Hasbrouck. In 1876, defendant rented part of the premises from Mary, she occupying the remainder. He still resides on the same, and since Mary has moved off, has occupied the whole, under a claim of right as guardian of the infant children, and upon demand has refused to deliver up possession to the-plaintiff. Held that the vendor upon demand of the payment, and a neglect or refusal upon the part of the vendee or those standing in that relation to comply within a reasonable time, would justify the commencement of an action to recover or take peaceful possession without action; that neither the infancy of the heirs or the widowhood of the wife of the vendee or his assigns, nor the loches of the infants released or modified in the least degree the obligation of payment of the purchase price, or extended the time of payment.
    2. Same—When tenant estopped from denying title of his landlord.
    
      Held, that the defendant, who, while standing in the relation of tenant of the plaintiff, got himself appointed general guardian of a part of the owners of the premises, shall not be permitted to deny the right of his landlord, nor is the right under which he claims to occupy the premises any defense to the action to recover their possession by the plaintiff.
    
      William Lounsbery, for app’lt; Schoonmalcer & Linson,. for resp’t.
    
      
       Affirming 40 Hun, 687 mem.
      
    
   Potter, J.

This is an action of ejectment brought to recover a lot of land situated in the county of Ulster. The original answer was a denial. In the course of the trial the defendant was allowed to prove facts outside of such issue, and tending to the establishment of an equitable defense. The action was tried by the court, and without a jury, by consent.

The court found the following facts: That Jansen Hasbrouck, the owner of the premises in question, on February 1, 1855, entered into a contract to sell and convey the same to William Hayden in consideration of the sum of $1,081.50 in five equal annual payments with interest annually on all sums unpaid on the first day of February in each year, until the whole sum was paid, when Hasbrouck was to execute and deliver to Hayden a warrantee deed of the premises in question. By the terms of the contract, in case of non-performance of all or any part of the agreement, by Hayden, the contract was to become null and void, and Hasbrouck was to have the right to enter into the possession of the premises the same as if the contract had never been executed. After the execution of the contract^ William Hayden entered into the possession of the premises and occupied them until the 21th of March, 1863. During all this time he paid no part of the principal, simply paying the interest up to the first of February, 1863, under an oral arrangement between himself and Hasbrouck. On the 21th of March, 1863, William Hayden sold and transferred all the interest he had in the contract to his brother, Joseph Hayden, who immediately entered into the possession of the premises, and continued in possession of the same until his death in 1870, when he died intestate.

Joseph Hayden did not pay any of the principal of the purchase price mentioned in the agreement, but paid the interest under a similar verbal arrangement with Hasbrouck, up to the first day of February, 1869, having made the last payment of interest on the fourth day of February, 1869. Joseph Hayden left him surviving, Mary, his widow, and three children by her, all infants. The youngest child died in the latter part of 1871, leaving Mary, his mother, and his infant brother and sister his sole heirs. The children had no estate other than the interest which they obtained in this contract by the death of their father, Joseph Hayden, and the interest which the surviving children obtained in the contract by the death of the youngest child. Mary, after the death of her husband, occupied the land until the latter part of April, 1877, paying the interest under a similar arrangement between her and Hasbrouck, up to February first, 1875, but none of the principal.

All of the children lived with her until the death of the youngest, and the other two down to the time when she-left the premises, when they lived with her elsewhere, being supported and maintained by their mother from the time of the death of their father. For a short time before the mother’s death, one of the children, and since the mother’s death, they have resided with the defendant. The interest on the money agreed to be paid by the contract was not paid since February 1, 1875, nor has any part of the principal been paid down to that time. Some time prior to the first of February, 1877, the widow went to Hasbrouck, and informed him that she would have to-abandon the contract; that she had no money, and could not procure any money, to pay it up. Hasbrouck gave her further time, but after some little time, she again went to him and told him she was unable to pay it, and asked him to abandon the contract, and he consented to its abandonment. Thereupon, Hasbrouck and the widow mutually consented to and did abandon the contract. As part of the-transaction in regard to the consent to abandon the contract at the solicitation of Mary, the plaintiff agreed to pay her the-sum of $289.50, and also, with her consent, agreed to pay the amount unpaid upon the contract, if Hasbrouck would execute a deed of the premises to him. In pursuance of such agreement, Mary and her husband, King, acting in behalf of herself and the children, executed an assignment of the contract, bearing date the 2d day of March, 1877, to the plaintiff, with authority to receive a deed of the land from Hasbrouck, and agreeing to deliver possession to the plaintiff April 1, 1877. The plaintiff, having been informed by Hasbrouck that he would execute a deed to him if desired by Mary, in pursuance of the agreement, the contract was surrendered to Hasbrouck, who executed and delivered a deed of the premises to him, bearing date on the 3d day of March, 1877, which was duly recorded on the 6th day of March, 1877.

The plaintiff, at the time of the execution of the assignment, paid to Mary and to her husband the sum of $289.50, which was on account of taxes and improvements claimed to have been paid by her, and at the time of the execution of the deed by Hasbrouck to plaintiff, plaintiff paid the amount unpaid on the contract.

Mary had no money of her own or property of the infants wherewith to pay the money unpaid on the contract, and the only way anything could be realized for herself or the children out of the premises was by taking the course she did.

In 1876 the defendant rented part of the house on the-premises from Mary, she occupying the remaining portion of the house. On the 9th of April the defendant was regularly appointed general guardian of the person and estate of the two surviving children of Joseph Hayden; the infants being respectively of the age of eight and ten years.

The defendant has continued to reside on the premises since the time he entered on the same as the tenant of Mary, the widow, and still resides on the same, and since Mary has moved off, has occupied the whole of the premises under a claim of right as guardian of the children, and has refused to deliver up the possession of the same to the plaintiff, after demand made upon him before the commencement of this action.

No guardian was ever appointed for the children by any court before the appointment of the defendant. The guardianship of the infants, with the rights, powers and duties of a guardian in socage were vested in the mother from the death of their father until the appointment of the defendant as the general guardian. The value of the use and occupation for the five years is $G00.

The lands embraced in this contract had the characteristic of real estate to said Hayden, and retained the same by the assignment to Joseph Hayden. Upon his death, it went to his widow, Mrs. King, and their children with the characteristics of doweress and heirs at law; upon the death of one of the heirs, his right went to Mrs. King, his mother, for life. From the time of the death of her husband and child, Mrs. King was doweress, had a liffe estate in the one-third of the estate, subject to her dower right in one-third of the lands, and was guardian in socage for the other two children in respect to their interest in the lands.

The obligation rested upon her and the infants to make the payments called for by the contract. If she failed to do so after demand of payment, the vendor could rescind the contract and bring an action to recover possession or take possession of the premises by any means short of a breach of the peace or forcible entry.

It is obvious from this state of facts that there was default of long standing, not only in paying any part of the principal debt or purchase price, but in the payment of the interest since February 1, 1875, and that the vendor, upon demand of the payment and a neglect or refusal upon the part of the vendee, or those standing in that relation, to do so within a reasonable period, would justify the commencement of an action to recover or take peaceful possession, without action.

Neither the infancy of the heirs or the widowhood of the wife of the vendee, or his'assigns, nor the loches of the infants, released or modified in the least degree the obligation of payment of the purchase price, or extend the time of its payment. Havens v. Patterson, 43 N. Y., 218, 222.

She had, while holding the title of doweress and as the heir of her deceased child and the guardian in socage of the other two infant heirs, twice come to the vendor and represented to him that neither she nor the infant heirs had any money or means, nor was there any estate of her deceased husband with which to pay the purchase price or any part of it or the interest in arrear thereupon, and asked him to abandon the contract and to release them from its obligations. The vendor consented to do so, and she promised to abandon the contract and to yield the possession of the premises to the vendor. As we have seen, if the vendor had demanded payment of the purchase price or the interest within a reasonable period," and such demand was not complied with, the vendor could have recovered the possession in an action brought for that purpose, or -could have resumed the peaceful possession of the premises, and it would have been sufficient to maintain such action that demand of payment was made upon any one of those upon whom the obligations to pay rested. Havens v. Patterson (supra); Corman v. Pultz, 21 N. Y., 547.

It cannot, it seems to me, be reasonably contended that the fact that the widow, and owner of the one-third and the guardian in socage of the owners of the remainder of the premises, desired to be released from the contract and to abandon the same, and who had no means or way to pay or perform the contract, should be less potential in enabling the vendor to recover or to take possession of the premises than a demand of payment of the principal or interest, and a non-compliance with such demand.

It follows from these premises that the vendor could have maintained an action to recover these premises at the time he conveyed them to plaintiff.

The_ result we have reached is based wholly upon the legal rights existing between plaintiff, standing in the position of the vendor by virtue of his deed to plaintiff, and with the default of payment. We will consider briefly the equitable relations existing between the plaintiff and defendant, .and see whether they require or should produce any change from the legal result. The plaintiff had purchased of Mrs. King her dower interest, and also an estate for life as heir of the deceased child, and paid her therefor the sum of $289.50, and received a transfer of those interests in March, 1877. Previous to this, and in 1876, defendant had leased of Mrs. King, and went into the occupancy under such lease, a portion of the premises, and continued so to occupy until after the transfer by Mrs. King to the plaintiff. After this transfer, the defendant procured himself to be appointed the general guardian of the two surviving infant heirs,_ and when the plaintiff demanded possession of the premises of the defendant, the latter claimed the right of possession as the general guardian of the surviving infants. Assuming now, as was done upon the trial, that the pleadings permitted the evidence upon the trial, tending to establish a right to specific performance of the contract of sale between Jaiísen Hasbrouck and Hayden, we encounter these difficulties.

First, the right of specific performance had been lost to the vendee and those succeeding to his position under the contract.

Second, if such right had not totally ceased to exist, but remained suspended, the tender required to revive the right was accompanied with the condition that the plaintiff should execute an unqualified deed of the premises to the two surviving heirs, regardless of the right which the plaintiff' had acquired of Mrs. King, and paid for, and without any recognition whatsoever of those rights. The plaintiff had certainly acquired the estate of Mrs. King, while the defendant was her tenant in the occupation of a portion of the premises, and by operation of law became the tenant of plaintiff upon the plaintiff’s purchase from Mrs. King. The defendant, while standing in the relation of tenant of the plaintiff, gets himself appointed the general guardian of a part of the owners of the premises, and then denies the right of his landlord, ■ and claims the right to occupy the whole of the premises. We perceive no equity in such defenses to the plaintiff’s action.

The judgment should be affirmed with costs.

All concur.  