
    Maurice Plett, Respt, v. Fowler Willson, Jr., et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 7, 1892.)
    
    Limitation—Action upon contract for sale of land.
    In 1870 plaintiff entered into an unsealed agreement with defendant and his father by which plaintiff agreed to sell to the Willsons certain real estate, to he paid for in annual instalments, the last one falling due April 1, 1880, when plaintiff was to convey the land. The vendees took immediate possession, and they or their assigns remained in possession to the time of the trial of this action, 1887, brought to foreclose the contract, and apply the avails toward the payment of the amount still due, a judgment for deficiency being asked against Fowler Willson, Jr., who had sold out in 1875 to his father, and against the widow and heirs of the father who are in possession. Payments were made annually until 1880. Held, that the six years statute of limitations applied, and the suit was barred.
    (Landost, J., dissents.)
    Appeal from a judgment of the general term of the supreme court, fourth department, entered on an order affirming a‘judgment rendered in favor of the plaintiff at circuit.
    In 1870 the plaintiff, Fowler Willson and Fowler Willson, Jr., executed a written contract, not under seal, by which the plaintiff agreed to sell and the Willsons agreed to purchase land at an agreed price, to be paid for in annual instalments, with annual interest, the last payment falling due April 1, 1880 ; upon which date the plaintiff, upon receiving full payment of the purchase price, was to convey the land to the vendees by a warranty deed. The vendees took immediate possession of the land under the contract, and remained in possession thereunder until May 31, 1875, when Fowler Willson, Jr., assigned his interest in the con- ■ tract to Fowler Willson (his father), the two having then paid $1,415.66 towards the purchase price and interest. Thereafter, Fowler Willson continued in possession until August 4, 1877, when he died intestate, leaving Sarah Willson, his widow, and several heirs-at-law. Between May 31, 1875, and August 4, 1877, Fowler Willson paid $150 on the contract. August 5, 1878, said Sarah Willson received letters of administration upon the estate of said Fowler Willson, deceased. Since the death of Fowler Willson his widow and heirs have remained in possession of the land, and were in possession at the time of the trial. Between the date of the death of Fowler Willson (August 4, 1877), and April 3, 1880, said widow and heirs paid (exclusive of $192.50 paid May 6, 1877, by Earned & Smith under an order of the special term granted March 10, 1877) $345. Payments were made annually, except in the year 1877, on this contract, from its date until April 13, 1880, when the last one, except said $192.50, was made.
    This action was begun January 8, 1887, to foreclose the contract and apply the avails towards the payment of the remainder of the purchase price, and a judgment for any deficiency that might arise was asked for against Fowler Willson, Jr., and the administratrix of Fowler Willson, Sr., in her representative capacity.
    The defendants interposed the six years statute of limitations
    ■ as their sole defense, and it was held not good, following Plett v. Willson, 50 Hun, 60; 23 St. Rep., 879, and a judgment in favor of the plaintiff was rendered.
    
      H, S. Willson, for app’lts; M 0. Worden, for resp’t.
    
      
       Reversing 31 St. Rep., 1004.
    
   Parker, J.

When the vendees made default in payment the vendor who still had the title might have proceeded, in disaffirmance of the contract, by an action of ejectment to recover possession. Such an action is governed- by the twenty year limitation. Code Civ. Pro., § 365. While a possible result of the present suit might be to secure possession by the vendor, it is not an action for the recovery of real property within the meaning of that section. Miner v. Beekman, 50 N. Y., 337; Hubbell v. Sibley, id., 468.

The vendor’-s other remedies were in affirmance of the contract, and were two in number. 1. A common law action against the vendees to recover the balance of the purchase price. 2. A suit in equity to foreclose the contract Whether the vendor1 should elect to enforce the collection of his debt through a personal judgment against his vendees, or by means of a foreclosure and sale of the property, his action would be on the contract which the vendees had failed to perform. Sections 380 and 382 of the Code of Civil Procedure provide that an action upon a contract, obligation or liability, express or implied, except a judgment or sealed instrument, must be commenced within six years after the cause of action has accrued.

As the contract in suit was not under seal the sections quoted apply, and more than six yéars having elapsed after the cause of action accrued and before the commencement of this suit, it is barred. Borst v. Corey, 15 N.Y., 505, criticised 31 N. J. Eq. 773; Trotter v. Erwin, 27 Miss., 772-779.

The judgment should be reversed.

Landón, J.

(dissenting.)—I cannot concur. I do not think the action is strictly upon the contract; it respects the equitable disposition of lands of which the plaintiff has the legal title and the defendant such, equities as his partly performed contract gives him. Defendant refuses further performance, but retains possession of the land. Equity requires that the land be converted into money and the money be equitably distributed. The judgment appealed from provides such relief. If plaintiff had given defendant a conveyance of- the land and this action were simply to enforce his equitable lien for the unpaid purchase money, the debt would be the substantive cause of action, and the right to equitable relief would be barred with the debt itself. Borst v. Corey, 15 N. Y., 505. In that case the plaintiff had parted with his title, and had only the lien which equity gave him. Here the plaintiff retains his title, and the defendant has only such equities as his part performance gives him. These two estates in the land, the one legal and the other equitable, may co-exist for an indefinite period unless the parties merge them. The defendant refuses to act as he has agreed, and the plaintiff, willing to do equity, seeks its aid, not strictly to enforce his equitable lien, but to obtain from his own land what it ought as between him and the defendant to yield him. His action for the debt may be barred, but his right to make an equitable disposition of his land and its proceeds continues to exist. Lewis v. Hawkins, 23 Wall., 119; Hardin v. Boyd, 113 U. S., 757. The six years limitation, under § 382, does not apply, and the ten years limitation, under § 388, had not expired when this' action was commenced.

Judgment reversed and new trial granted, costs to abide event.

All concur, except Landon, J., dissenting, and Follett, Ch. J., not sitting.;  