
    House v. Howell et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    July 20, 1889.)
    1. Ejectment—Title to Maintain—Equities.
    In 1875 plaintiff verbally agreed to sell a tract of land to AV". in consideration of his agreement to pay half of a S400 mortgage thereon, and also to pay and have satisfied two judgments against plaintiff. W. went into possession in 1876, and he and his grantees have ever since had full possession, paid taxes, made improvements, etc. He duly paid half of the mortgage, and also paid both the judgments, but at plaintiff’s request took an assignment thereof to himself, instead of having them satisfied; but he has always been ready and willing to enter satisfaction. Plaintiff executed and acknowledged a deed to W. for the land, but never delivered it. In ejectment against the tenants of W.’s grantees, held, that while plaintiff has the bare legal title, she holds it in trust for defendants’ lessors, and cannot maintain the action.
    2. Same—Pleading—Equitable Defense.
    Defendants denied plaintiff’s ownership and right of possession, and alleged ownership in their lessors. Under this answer proof was admitted without objection to establish the equitable title, and plaintiff expressly requested the referee to find most of the facts which supported such title. Held, that a judgment for defendants would not be reversed on the ground of the insufficiency of the answer.
    8. Same—Evidence—Conclusion of Witness.
    The court required plaintiff on cross-examination to answer the question, “Was there an understanding between you and W. that he should eventually have a deed” of the land in question? Held that, inasmuch as it was apparent that the word “understanding ” was used as synonymous with “ agreement, ” and that the effect of the question was to inquire for a fact and not the mere conclusion of the witness, there was no prejudicial error in allowing it, particularly as the fact of such agreement was amply proved by other testimony.
    Appeal from judgment on report of referee.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      8. N. & G. 8. Bada, for appellant. Howe, Hice & Stranahan, for respondents.
   Martin, J.

This action was ejectment. The answer consisted of a general denial, allegations of title in the defendant Howell to the premises claimed, and that Henry M. Myers was in possession under Howell. The principal question litigated was whether the plaintiff was the owner and entitled to the possession of the land in question. On October 1, 1864, the plaintiff became the owner of the premises, and on that day gave a purchase-money mortgage for $400, which was a lien thereon, and also upon 30 acres adjoining, which were purchased by the plaintiff with the 20 acres in question. The plaintiff went into the possession of the whole, and remained in possession until about April 1, 1876. In 1875 the plaintiff entered into a verbal agreement with Thomas R. Wright, whereby the plaintiff agreed to sell and convey to Wright the premises in question in consideration of his agreement to pay one-half of said $400 mortgage, and to pay and have satisfied two judgments against the plaintiff, which were also liens upon said premises,—one in favor of P. S. Puller for $172.75, and the other in favor of It. T. Jones for $181.44. The plaintiff was to remove the house from said premises, and Wright was to have the possession of the land after the house was removed. In April, 1876, the house was removed by plaintiff, and Wright took possession of the land, and he and his grantee have since been in possession thereof. Wright and his grantee have since paid the taxes thereon, cultivated the same, built fences thereon, and had the full possession, control, and management thereof. In pursuance of such agreement, Wright duly paid one-half of said mortgage, and paid both of said judgments, and, at the request of the plaintiff, had them assigned to himself, instead of having them satisfied. The Jones judgment was afterwards satisfied. The Puller judgment has not been formally satisfied, but there was no evidence that the plaintiff ever requested Wright to satisfy it, or that he refused; but, on the contrary, he testified on the trial that he was ready to do so. In pursuance of the agreement between the plaintiff and Wright., the plaintiff, on the 25th day of April, 1883, duly made, executed, and acknowledged a warranty deed of said premises to said Wright, but said deed was never delivered by the plaintiff, although it came into Wright’s possession at one time. On July 4,, 1884, Wright executed to one George M. Case a mortgage, which included the. premises in question with other lands. This mortgage was afterwards foreclosed, and the mortgaged premises were sold. The defendant Howell became the purchaser of said premises, including the 20 acres in question. He was a purchaser in good faith, and for value. He received a deed therefor from the sheriff of Oswego county, who was duly authorized to make such sale. On April 1,1886, and after he had become the purchaser of said premises, Howell let the premises in question to the defendant Henry M. Myers, on shares, for one year, and afterwards to the defendants Henry M. and Charles W. Myers. Upon these facts the referee held that, while the plaintiff held the naked legal title to the premises, the defendant Howell had a valid equitable title, and was entitled to possession, and therefore the plaintiff could not maintain this action. We think the evidence fully sustained the conclusions of the referee. The contract between the plaintiff and Wright was fully performed by him. He paid one-half of the mortgage, and paid the Jones and Puller judgments. It is true he took an assignment of these judgments, instead of having them satisfied, but that was done for the plaintiff, and at her request. One of them he has satisfied, and he is ready and willing to satisfy the other. Wright fully paid the purchase price of the premises, entered into possession, cultivated and improved them, paid the taxes, and treated them in all respects as his own. The plaintiff has received the purchase price, which was paid and applied as directed by her, removed the house from said premises, surrendered up the possession to Wright, and made, executed, and acknowledged a deed to him of the premises in pursuance of such contract. The only act required to a full and complete execution of such contract was the delivery of such deed-Thus Wright’s equitable title to the premises had become complete. The defendant Howell has succeeded to that title under and by virtue of the mortgage given by Wright, its foreclosure and the sale of the premises thereunder and the purchase thereof by him. The plaintiff held a mere naked legal title to the premises in trust for her vendee or the successor to his title, without any equitable right to the possession or equitable interest therein. Thompson v. Smith, 63 N. Y. 303. Surely the plaintiff had no title or right of possession which she could justly assert as against the defendant Howell’s equitable title. We think this case was correctly decided, and that the referee properly held that the plaintiff could not recover in this action.

But the plaintiff contends that this defense was not admissible under the pleadings. The defendants, by their answer, denied the plaintiff’s ownership of the premises and her right of possession, and alleged ownership and right of possession in Howell and those claiming under him. Under this answer the defendant proved Howell’s equitable title and possession. This proof was given without objection by the plaintiff as to the sufficiency of the answer. Moreover, the plaintiff expressly requested the referee to And many, if not most, of the facts which established Howell’s equitable ownership. During the entire trial the answer seems to have been regarded and treated by the plaintiff as sufficient to test the validity of Howell’s equitable title and right of possession The plaintiff now asks for a reversal of the defendant’s judgment on the ground of the insufficiency of the answer. We do not think the judgment should be reversed on that ground. The answer was not as full and complete as it might have been made, but we think it sufficient to uphold the recovery, as no question as to its* sufficiency was raised on the trial or before. If it was not sufficient, then we are of the opinion that the referee had power to permit it to be amended so as to conform to the proof, and that it should be so amended, if necessary to sustain the judgment. Code Civil Proc. §§ 539, 540, 723, 1018; Fallon v. Lawler, 102 N. Y. 228, 6 N. E. Rep. 392; Knapp v. Fowler, 30 Hun, 512-515; Wilcox v. Bank, 40 Hun, 297; Cramer v. Locejoy, 41 Hun, 581; Avery v. Railroad Co., 106 N. Y. 142-151, 12 N. E. Rep. 619; Davis v. Railroad Co., 110 N. Y. 646, 17 N. E. Rep. 733; Price v. Brown, 112 N. Y. 677, 20 N. E. Rep. 381. On the trial the plaintiff was sworn as a witness and on her cross-examination the following question was asked: “Was there an understanding between you and Wright that he should eventually have a deed of the twenty acres?” “To this question plaintiff’s attorney objected, as tending to prove a verbal contract for the sale of land, which the statute requires to be in writing, as leading, not a cross-examination of plaintiff, and calling for the opinion of the witness as to the effect of a conversation which is not proven. The court overruled the objection, and received the evidence called for as tending to prove the kind of possession that plaintiff had of the twenty acres in question. To such ruling the plaintiff’s attorney duly excepted,” whereupon the witness answered “Yes.” While it must be admitted that the general rule is that the facts within the knowledge of a witness must be given, and that he cannot testify to his understanding of or conclusion as to the facts, still, in this case, it is quite manifest that the word “understanding” in the question asked was not employed or understood by the witness in the sense of calling for her understanding or conclusion as to the facts, but that it was used as a synonym of the word “agreement,” and that the effect of the question was to inquire for a fact, i. e., whether there was an agreement between the plaintiff and Wright that he should eventually have a deed of the 20 acres. Thus construed,—and we think such is a fair construction,—the question was clearly proper. De Wolf v. Williams, 69 N. Y. 621; Sperry v. Baldwin, 46 Hun, 120, 128. Moreover, if the referee erred in admitting this evidence, it is extremely difficult to see how the plaintiff was in any way injured by such ruling, as the other evidence in the case, which was wholly uncontradicted, shows that the agreement or understanding testified to existed between the parties. We do not think the admission of this evidence constituted an error for which the judgment should be reversed. Having examined all the questions presented in the appellant’s brief, and having found none that require or would justify a reversal of the judgment herein, it follows that the judgment should be affirmed. Judgment affirmed, with costs. All concur.  