
    Nicholas Palmer and Jane E. Palmer, Appellants, v. Hudson Valley Railway Company, Respondent.
    Third Department,
    September 15, 1909.
    Beal property — vendor and purchaser — demand for conveyance not called for by contract — equitable relief.
    It is no defense to a suit to recover the purchase price of lands for the vendee who has entered into possession under the contract of sale to allege that it has tendered the purchase price but the vendor has refused to deliver a- proper deed, if the tender was made on condition that the vendor give proof of title and a full covenant deed not called for by the contract.
    A suit by the vendor is properly brought in equity and the court has power to decree the payment of the purchase price upon the execution of a proper conveyance by the vendor.
    
      Appeal by the plaintiffs, Rieholas Palmer and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 9th day of October, 1908, upon the decision of the court, rendered after a trial at the Saratoga Special Term, dismissing the complaint upon the merits.
    
      Rockwood, Scott & McKelvey [L. B. McKelvey of counsel], for the appellants.
    
      W. L. Kiley [T. D. Trumbull, Jr., of counsel], for the respondent.
   Kellogg, J.:

The complaint alleges that the plaintiffs executed and entered into an agreement in writing whereby they agreed with the defendant that upon the payment of seventy-live dollars per acre they would convey to it a strip of land sixty-six feet wide across their premises; that the defendant caused said agreement to be recorded and thereupon entered into the possession of said premises pursuant to said agreement, and built its railroad along said strip, the amount of land so taken constituting four and forty-eight-one-hundredths acres; that the defendant has not paid therefor; that the plaintiffs are.ready and willing to convey; that the defendant refuses payment, although demanded, and that plaintiffs are willing to convey the land upon payment of the purchase price.

The answer first admits the" execution of the agreement by the plaintiffs and that the defendant recorded the same; that the defendant thereafter entered upon and constructed its road upon a strip of land sixty-six feet wide across plaintiffs’ lands, and has ever since been and now is in occupation,' and that it has not paid therefor, and denies each and every other allegation of the complaint. And as a second and affirmative defense it alleges the execution of the agreement by the plaintiffs, the tender of the purchase price by the defendant and a demand for the deed, which was refused, and that before the commencement of this action it served upon the plaintiffs a written notice that there was on deposit in the Merchants’ Rational Bank of Glens Falls $200.25 held by the bank in escrow for the plaintiffs, to be paid them upon the delivery of a full covenant warranty deed conveying the lands covered by said agreement, properly executed, together with satisfactory evidence that the title to said premises was free and clear of all incumbrances. The answer then describes the premises taken by the defendant under the agreement as containing two and sixty-seven-one-lmndredths acres of land, and alleges that plaintiffs have refused the money and neglected to execute said deed. It demands judgment for the dismissal of the complaint, that the plaintiffs be directed to execute and deliver the deed in compliance with the contract, and for other relief. After hearing the evidence the court dismissed the complaint for the reason stated, that the agreement executed hy the plaintiffs was at most an option containing no promise to pay by the defendant, and no facts had been shown making the defendant liable for the payment of the purchase price, and if such agreement be assumed, it was to pay upon a conveyance of the premises which had not been made or tendered, and intimates that the plaintiffs’ remedy is ejectment, and not to recover the purchase price. In the decision it is also stated that plaintiffs had proved title to two parcels of the land A and 0, and they did not own parcel B.

It is apparent that the defendant entered into the possession of the land pursuant to the agreement or option for purchase which it had recorded, and it attempted to tender the purchase price, attaching to the tender a condition which it had not the right to make. Concededly the plaintiffs were the owners of two and sixty-seven-one-liundredths acres of land, possession of which had been taken under the agreement by the defendant. The attempt by the defendant to annex to its demand for a conveyance an unreasonable requirement as to proof of title and a full covenant deed was a waiver of a tender of a proper deed. The defendant demanded equitable relief; the trial was before the court without a jury, which was an appropriate manner for the trial of an equitable action. Upon the conceded facts the court had ample power and it was its duty to render judgment for the plaintiffs for the amount of their land which the defendant had taken under the agreement, and it had ample power, if it deemed it necessary, to require the execution and delivery of a proper conveyance. It, therefore, was a proper case for the court to decide upon its merits, determining just how much land the defendant had elected to take and had taken pursuant to the agreement, and to award payment of the purchase price to the plaintiffs upon the execution of a proper conveyance therefor, which the plaintiffs upon the trial offered to make.

The judgment should, therefore, be reversed and a new trial granted, with costs to the appellants to abide the event.

All concurred, except Smith, P. J., not voting.

Judgment reversed on law and facts, and new trial granted, with costs to appellants to abide event.  