
    Cornelia Sample, Appellant, v. James Lyons, Respondent.
    
      Ejectment— defense of a contract of sate made by the plaintiff’s ancestor to the defendant—sufficiency of the averment thereof — effect of the contract on the title — defense of the Statute of Limitations, not demwrable.
    
    The answer interposed in an action of ejectment alleged as a second defense that . the defendant and one Anthony Burnett, through whom the plaintiff claimed title, entered. into an agreement under seal in the presence of a subscribing witness on August 28, 1873, whereby Burnett agreed to sell and convey the premises to the defendant for the sum. of §300, §100 to be paid in cash, §100 and. interest November 1, 1874, and the residue with interest November 1, 1875; that the defendant was to pay all taxes and assessments charged upon the land from the. date of the agreement, and that when the purchase price was fully paid, the said Burnett would execute and deliver to the defendant a good and sufficient warranty deed of the premises; that the defendant paid the first installment of the purchase price on the day the contract was made, went into-possession of the premises and -has continued to occupy the same ever since; that on November 14, 1874; he paid to the administrator of Anthony Burnett the §100 then due on the contract, and a year later tendered to him the balance unpaid and demanded á deed of the premises, which was never delivered to-him; that the defendant has ever since the date of the contract “been ready and willing to receive a deed of said lands,’’ and to pay the balance of said purchase price upon obtaining “ a proper and legal conveyance from the legal heirs of Anthony Burnett, deceased.”
    
      Held, that the defense was not demurrable;
    That the language of the agreement and the fact that the defendant was to pay taxes, and that he entered into possession of the premises immediately, indicated that it was the intention of the parties that the defendant should have possession, although the agreement did not in terms award such possession to him;
    
      That, although the answer did not aver in specific terms that the defendant’s possession was in pursuance of the agreement, such was the only conclusion to be drawn from it;
    That after the execution of the agreement the legal title to the premises remained in Anthony Burnett, as trustee for the defendant, and that upon Burnett’s death his administrator was entitled to the unpaid purchase money, but that the defendant had a right to insist upon' a conveyance of the legal title from Burnett’s heirs at law when he paid the balance of the purchase price.
    The answer for a third separate defense stated that the defendant “repeats and realleges,” the allegations of the second defense. It also alleged that the “cause of action stated in this complaint did not occur within twenty years before the commencement of this action.” The plaintiff demurred to that portion of this defense which set up the Statute of Limitations.
    
      HM, that plaintiff was not in a position to raise the objection that the defense constituted an attempt by the defendant to impugn the title of his vendor, as his demurrer was simply to that portion of the defense which set up the Statute of Limitations, and did not extend to the averments as to the defendant’s equitable title set up in the second defense, and repeated and re-alleged in the third;
    That the plea of the Statute of Limitations might be based upon a title wholly disconnected with the agreement between the defendant and Burnett.
    Appeal by the plaintiff, Cornelia Sample, from a judgment of the Supreme.Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 27th day of April, 1900, upon the decision of the court rendered after a trial at the Steuben Special Term overruling the plaintiff’s demurrer to the amended answer to the amended complaint.
    
      Sebring & Cheney, for the appellant.
    
      Delmar M. Darrin, for the respondent.
   Spring, J. :

This action was commenced to recover possession of the farm occupied by the defendant. The complaint is the usual one in ejectment. It alleges that Anthony Burnett died intestate September 2, 1873, leaving his brother, the father of the plaintiff, as one of his three heirs at law; that this brother died intestate, leaving his widow and three children him surviving; that the plaintiff has acquired the title of which her father died seized, and now owns an undivided one-third of the premises subject to the dower interest of her mother.

The answer first pleads a general denial. In the second count it reiterates. this general denial, and sets forth this affirmative defense: That on the 28th of August, 1873, the defendant and said Anthony Burnett entered into a written agreement, under seal and in the presence of a subscribing witness, whereby Burnett agreed to sell and convey said premises to the defendant for the sum' of $300, $100 of which were, by the terms of the agreement, to be paid in cash, $100 and interest on the balance unpaid, November 1, 1874, and the residue, with interest, November 1, 1875'; that the said vendee was to pay all taxes and assessments charged upon the land ' from the date of the agreement. When the purchase price was fully paid, the vendor was to execute and deliver to the vendee “ a good and sufficiént warranty deed of said lands;” that the defendant paid the said sum of $100 on said contract on the day of its date, went into possession of said land and has continued to occupy the same ever since; that Peter Burnett, the father of the plaintiff, was appointed administrator of the deceased Anthony,'and on the 14th day of November, 1874, the defendant paid to him the $100 then due upon the contract, and a year later tendered to him the balance.unpaid thereon and demanded a deed of the said premises which has_ never been' delivered to him; that the defendant, has ever since the date of the contract “been ready and willing to receive a deed of said lands ” and to pay the balance of said purchase price unpaid upon obtaining “a proper and legal conveyance from the legal heirs of Anthony Burnett, deceased.”

This affirmative defense, if proven, is absolutely decisive against the plaintiff. Evidence permissible under it would establish defendant’s occupancy by agreement with the plaintiff’s ancestor, and that the vendee has fulfilled whatever obligations were imposed upon him by it; that his possession, instead of being wrongful, is supported by his agreement, and that he is entitled to a deed vesting the legal title in him.

To be sure, the agreement in terms does not .award possession to the vendee, but he was to pay the taxes, and did in fact enter in possession immediately, indicating unmistakably that was the intention of the parties. Payment of taxes and interest imply that occupancy was expected.

Again, the answer is criticized because it does not aver in specific ■. terms that the possession was pursuant to the agreement; that such was the fact is the only conclusion that can be spelled out of the language employed. He went into possession promptly and paid, or tendered payment, pursuant to the agreement, claiming to be the equitable owner, all of which are facts consistent only with possession under the agreement. In arriving at the meaning of the answer we are not confined to definite allegations made, but if the pleading as a whole or the inferences reasonably flowing from the facts set forth show a defense then it will be deemed sufficient. In Marie v. Garrison (83 N. Y. 14, 23), quoted approvingly in Sanders v. Soutter (126 id. 196), the rule is thus stated: “ A demurrer to a complaint for insufficiency can only be sustained when it appears that, admitting all the facts alleged, it presents "no cause of action whatever. It is not sufficient that the facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that the material facts are only argumentatively averred. The complaint on demurrer is deemed to allege what can be implied from the allegations therein by reasonable and fair intendment, and facts impliedly averred are traversable in the same manner as though directly averred.” Sage v. Culver (147 N. Y. 241) and Kain v. Larkin (141 id. 144, 150) give expression to the same wholesome rule.

After the agreement the legal title remained in the vendor, but he held it as the trustee of his vendee. Upon the death of the vendor the unpaid purchase money went to his administrator but his heirs at law could be compelled to convey. ( Williams v. Haddock, 145 N. Y. 144.) The payment to the administrator was, therefore, proper, and the purchaser had a right to insist that a conveyance of the legal title to him should be simultaneous with full payment of the balance of the purchase price.

A demurrer is also interposed to that part of the 3d paragraph of the answer which alleges “ that the cause of action stated in this complaint did not occur within twenty years before the commencement of this action.” It is declared in this separate count that the defendant “repeats and realleges ” the allegations of the second defense. The counsel for the appellant bases his criticism upon this defense that it is an attempt by the vendee to impugn the title of his vendor which of course cannot be done; He asserts that adverse possession does not begin to run against the vendor until the purchaser has fully performed on his part, and confessedly he has not paid in full or done what is equivalent to payment — kept his tender good. (Fosgate v. Herkimer Manufacturing & Hydraulic Co., 12 Barb. 352 ; Matter of Department of Parks, 73 N. Y. 560, 566.) But the appellant is not in a situation to take advantage of these well-settled rules which.he invokes. His demurrer is solely to that portion of the defense which-sets up the Statute of Limitations. His argument is on the assumption that he has demurred to the plea of the statute including the averments which reallege the equitable defense founded upon the agreement which is set out at length, in the 2d paragraph of the answer. He has carefully eliminated from his attack this preceding defense.' The plea of the Statute of Limitations, for aught we know, may be based upon a title wholly disconnected with the equitable defense. We áre not called upon to construe it in the light of the other facts hut simply to determine whether upon any phase of the case which, may be presented the defense is available to the defendant. More than twenty years have elapsed since he acquired possession, and he may be able to show some other title or some other facts irrespective of his agreement which may support his plea of the statute. We are not called upon to speculate what may arise, but presumptively he can give proof to. sustain this defense, and he should not be debarred from so doing, which would be the result of a decision sustaining the demurrer to that part of this paragraph to which it relates.

The last defense alleged may contain allegations which are unimportant and possibly might be stricken out. on motion, but we ' are of the opinion that the part objected to is not demurrable. -

The judgment should be affirmed, with costs to the respondent.'

All concurred, except McLennan,’J., not sitting.

Judgment affirmed, with costs. ' ' 
      
       Sic.
     