
    Edward F. Murphy, as Sole Surviving Executor, etc., of Hugh Smith, Deceased, Respondent, v. Julius B. Fox, Appellant.
    First Department,
    November 6, 1908.
    Real property — vendor and purchaser — contract to purchase lands during partition—^equity — specific performance not required.
    A vendee who contracted to buy land from an executor having a power of sale without knowledge that a lis pendens had already been filed in an action for partition under a complaint alleging- that the power of sale had terminated, which complaint had been held good on demurrer, will not be required to make specific performance, irrespective of whether the Us pendens be a cloud on the title or whether the court was justified in sustaining the complaint, for equity will not require a vendee to buy a law suit with the land.
    Appeal by the defendant, Julius B. Fox, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of January, 1908, upon the report of a referee directing the specific performance of a contract to purchase land.
    
      Edward M. Shepard, for the appellant.
    
      Lucias II. Beers, for the respondent.
   Houghton, J.:

The plaintiff’s testator died seized of several parcels of real property and by his will gave to his executors power to convey certain of them upon the death of his sister. That event having transpired, the plaintiff, ás sole surviving executor, made a contract for the sale of one of these parcels to the defendant. When this contract was made and at the time fixed for passing title there was pending against the plaintiff and other parties in interest an action for partition covering the parcel in controversy brought by the executor of one of the owners of the remainder estate and a lis pendens therein had been duly filed. The complaint in that action after setting forth the will of the testator and the chain of title and the interest of the parties, alleged that no trust was created by the will so as to vest title in the executors, and that whatever power of sale existed in the executors had been lost through the election to convey on the part of the residuary devisees, evidenced by their actual conveyances of undivided portions before the power had been exercised. Certain defendants demurred on the ground that the complaint failed to state a cause of action, and, on the demurrer being overruled, they appealed to this court, which affirmed the judgment. ( Van Norden Trust Co. v. O’ Donohue, 122 App. Div. 51.) On that appeal this court considered the provisions of the will and determined that no trust vesting title in the executors was created, and also concluded that the power of sale vested in them had terminated by the election of the remaindermen to convey. Notwithstanding the interlocutory judgment overruling the demurrer to the complaint had been entered, the plaintiff did not inform the defendant of the pendency of the partition action when the contract of purchase was signed and the defendant had no actual knowledge of it.

At the time for closing title the defendant refused to take because of the pendency of the partition action and the existence of a lis pendens therein, whereupon the plaintiff brought this action to compel the defendants to specifically perform. We think the learned referee was in error in decreeing specific performance.

The theory upon which he arrived at his conclusion was that the decision by this court that the power of sale had terminated was unnecessary to the determination of the question as to whether or not the complaint stated a good cause of action in partition, and that this court was in error in assuming that all of the remainder-men had conveyed, because in fact only fourteen out of the fifteen owners had done so, and that the power of sale not having been extinguished, it survived the partition action and could be exercised notwithstanding its pendency up to the entry of judgment therein. It is, perhaps, proper in this connection to say that although it could have been ascertained from the complaint in the partition action by checking off the names that only fourteen out of the fifteen remaindermen executed the conveyances, still upon the' argument and in the briefs of both counsel it was assumed that all of the remainder-men had joined, in conveyances of portions of their undivided interests, and it was upon that assumption that this court made its decision.

When the defendant, not knowing and not being informed of the fact, entered into his contract, and' when he was asked to complete his purchase, there was on file against the property which he had agreed to buy a lis pendens, together. with a complaint asking for a sale of the property in partition, and asserting that the power of sale in the executor had terminated, which complaint had been tested upon demurrer, that test resulting in a judgment determining that a good cause of action was set forth.

It is a general rule that a pending action and Us pendens filed justify a rejection of title by the purchaser of land, when the complaint states a good cause of action affecting the land bai'gained for (Simon v. Vanderveer, 155 N. Y. 377; Whalen v. Stuart, 123 App. Div. 446.)

Whether the pendency of a partition action in which a lis pen-dens has been properly filed constitutes a cloud upon the title or not, and whether or not the court was correct in saying the complaint therein stated a good cause of action, specific performance should not have been decreed against the defendant. In an equitable action for specific performance the test is not whether the title proffered can be successfully defended on litigation. The defendant was under no obligation to buy a lawsuit- along with his land. The situation presented when defendant was called upon to take title was not such that it was inequitable to compel him to specifically perform. Assuming, as asserted by plaintiff, that his power to convey as executor had not been terminated, and that notwithstanding the partition action he could exercise that power until judgment was actually entered, still if the defendant took title, he must intervene in the partition action and prevent a judgment of sale, or follow the judgment and bid in his own property. Thife he was. not legally called upon, to do, and it was inequitable for a court, of equity to thrust him into such a position against his will.

The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  