
    Mary M. Risley v. Eli Rice and Stephen Fuller.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed June, 1886.)
    
    1. Ejectment—Contract of sale—Legal title—Equitable title— Right op holder of legal title to maitain ejectment against one claiming under a contract made by prior owner.
    One Pierpont became tlie owner of the premises in question, Nov. 13, 1867, and conveyed them to defendant Fuller, August 81, 1880. They were conveyed to the plaintiff June 30, 1884, by a sheriff’s deed, pursuant to a sale on execution upon a judgment against Fuller. At the commencement of this action, which is for ejectment, Fuller was in possession as the tenant of defendant Rice, who claimed title and the right of possession from the facts that Noy. 12, 1867, Pierpont made a contract with Sarah A. Mitchell to sell her the land for $108.41, and to convey it to her on her payment of that sum, or her securing its payment by her bond secured by a mortgage on the premises; that she gave to one Collins a mortgage on them April 13, 1877, to secure the payment of $221.90; that the premises were sold pursuant to decree of foreclosure of such mortgage, and conveyed by the referee to Shettler September 4, 1880, who made a deed to defendant Rice, September 14, 1880. Held, that the legal title was in the plaintiff, and she was entitled to possession. That it was not error to direct a verdict for her.
    2. Same.
    The Mitchell contract furnished no legal estate in the premises, and if she went into possession under it, her possession was only by license and no greater right was in those holding under her.
    3. Same—Remedy in equity.
    The vendee by a contract of purchase takes the equitable title to the contracted premises, and his remedy is in equity.
    4. Same.
    If in possession under such contract he may support his right under it, and defeat a recovery by setting up his equitable defense, if he has one, and by offer of performance of the contract and the demand of conveyance, if the situation permits.
    6; Same.
    The vendee in the contract, or his assignee, could not maintain an action to recover the purchase money, nor for specific performance, without the tender of a deed and demand of performance.
    6; Same.
    The executory contract of sale, as such, affords no right to the possession to any person holding under it as against the legal title.
    Motion by the defendants for a new trial on exceptions taken at Ontario circuit and ordered heard at general term in the first instance.
    
      Henry M. Fuld, for defendants; E. W. Gardner, for plaintiff.
   Bradley, J

The action is ejectment. One Pierpont became the owner of the premises in question on the 12th day of November, 1867, and conveyed them to Stephen Fuller on the 31st of August, 1880. They were conveyed to the. plaintiff June 30, 1884, by the deed of the sheriff of Ontario county, pursuant to a sale upon execution issued upon a judgment against Fuller. This apparently vested title in the plaintiff. At the time of the commencement of this action, the defendant Fuller was in the possession of the premises as the tenant of the defendant Rice. The latter claims title and the right of possession, founded upon the facts that on the 12th day of November, 1867, Pierpont made, with Sarah A. Mitchell, a contract to sell to her the land for $108.41, and to convey it to her on payment by her of that sum, or on securing the payment of it by her bond secured by mortgage on the premises; that she gave to one Collins a mortgage on them, April 13, 1877, to secure the payment of $221.90; that the premises were sold pursuant to decree of foreclosure of such mortgage and conveyed by the referee making it to one Shettler, September 4, 1880, and a deed was made by Shettler to the defendant Rice, September 14, 1880.

Upon this state of facts it appears that the legal title was in the plaintiff, and she was entitled to the possession unless the defendants had some right derived from or under the contract to Mitchell to support their defense. The contract did not by its terms give the vendee any right to the possession, and before the commencement of this action the defendants refused, on demand, to surrender the possession to the plaintiff. A verdict was directed, and we think properly, for the plaintiff, by the trial court.

The right to the possession of the premises depended upon some legal estate in the land. The legal title was in the plaintiff. And assuming that the defendant Rice had all the right afforded by the Mitchell contract when it was made, that furnished no legal estate whatever in the premises; and if she went into possession under it, her possession was only by license merely, and no greater right was in those holding under it. Ives v. Ives, 13 Johns., 235 ; Erwin v. Olmsted, 7 Cow., 228 ; Jackson v. Moncrief, 5 Wend., 26; Wright v. Moore, 21 id., 230 ; Doolittle v. Eddy, 7 Barb., 74; Hotailing v. Hotailing, 47 id., 163; Pierce v. Tuttle, 53 id., 155.

The vendee, by a contract of purchase, takes the equitable title to the contracted premises, and his remedy is in equity. If in possession under such contract, he may support his right under it, and defeat a recovery by setting up his equitable defense, if he has one, and by offer of performance of the contract and the demand of conveyance, if the situation permit.

It does not appear that any of the purchase-money of the. Mitchell contract has been paid, and no offer was made or alleged by the answer, and proved to have been made, of performance ; and no equitable defense founded upon proposed performance is alleged or proved. The case, therefore, stands upon the legal rights of the parties as distinguished from their equities.

But it is contended on the part of the defense that the plaintiff could not maintain her action without first having demanded performance, and tendered a deed of conveyance, and that the right of action was dependent upon refusal, on such demand and tender, of defendant Rice to perform. It is true that the stipulations of the parties in the contract are concurrent, and that neither could require performance of the other without readiness and offer to perform.

The vendor in the contract, or his assignee and grantee, could not maintain an action to recover the purchase-money nor for specific performance, without the tender of a deed of conveyance and demand of performance. And such is the nature and doctrine of the cases cited by counsel. Van Campen v. Knight, 63 Barb., 205 ; Laird v. Smith, 44 N. Y., 619.

This action is not founded upon the contract, nor is performance in any respect the subject of relief in view by it, but it rests upon the legal title and the right to the possession of the premises. The executory contract of sale, as such, affords no right to the possession to any person holding under it as against the legal title. Wright v. Moore, 21 Wend., 230. There is no evidence tending to prove any defense to the action. And the evidence offered by the defendant and rejected was of no value, and immaterial. Such evidence, if recived, would not tend in any degree to prove that the deed to Fuller did not convey the legal title, or that the plaintiff did not take it by the deed to her.

The motion for a new trial should be denied and judgment ordered on the verdict.

Smith, P. J., and Haight, J., concur.  