
    William Benedict, App’lt, v. Calkins, Resp’t.
    
      (Supreme Court, General Term,, Third Department,
    
    
      Filed September 20, 1887.)
    
    1. Mortgages&emdash;Equitable&emdash;Possession under contract on sal®.
    When a contract of sale has been entered into, a part of the consideration paid, and the purchaser allowed the possession of the land, he is considered to be the owner, and in equity the vendor is the mortgagee for the unpaid balance,
    3. Real property&emdash;Sale of&emdash;Purchaser in possession under the contract&emdash;Rights of third parties dealing with same.
    Yan Wert and Miver entered into a contract of sale of certain real property with Bogart, who, paying part of the consideration, went into possession. While so in possession, Bogart verbally sold to Benedict, the plaintiff, a right of way, and thereafter, upon petition to the highway commissioners, this road was laid out. Subsequently Bogart assigned his contract of sale to Calkins, the defendant, who obtained a deed from, the original sellers. Calkins had notice of Benedict’s claim of a right of way. Held, that as assignee of Bogart, and especially as an assignee with actual knowledge, Calkins took the contract, subject to the rights which Bogart sold to Benedict. Calkins, when he took Ms deed from Mirar, claimed under Bogart, and was in privity with him. His only right to a deed was under Bogart’s contract as assignee thereof.
    
      Alpheus Patis, for app’lt; T. A. Niven, for resp’t.
   Learned, P. J.

Van Wert and Niver owned the land, the title, for convenience, being in Niver, Van Wert made a written contract (evidently with the consent of Niver) with Bogart to sell him the land at a certain price. Bogart paid part and went into possession. Under well~settled rules, therefore, Bogart was to be regarded in equity as the owner of the land, and Van Wert and Niver as mortgagees for the unpaid balance.

Being thus in possession, in consideration of twenty dollars paid him by Benedict~ the plaintiff, verbally sold to Benedict the right of way, or private road over the land. Benedict went into possession of the use of this private road and worked it. Benedict and Bogart united in an application to the highway commissioners, under the statute, to lay out this private road. TMs application is signed by both of these parties, and states that twenty dollars have been paid by Benedict to Bogart therefor, and it states where the road is to run. And the usual proceedings were thereupon had and the road laid out.

Whether at this time Bogart was such an owner of the land that these proceedings were valid under the statute, we need not decide. They were enough, taken in connection with the contract between Bogart and Benedict, the payment of the price, and the taking possession by Benedict, to give Benedict a right to this road as against Bogart. This was conceded by def mdant’s counsel on the argument, and is conceded in the opinion of the learned court.

Bogart then assigned his contract with Van Wert to the defendant Calkins. Calkins had knowledge at the time of Bogart’s agreement with Benedict, as above stated, and Calkins was allowed by Bogart $100 on the purchase price, in consideration of this right of way of Benedict.

As the assignee of Bogart, and especially as an assignee with actual knowledge of Benedict’s claim, Calkins took the contract subject to the rights which Bogart had sold to Benedict. He was as much bound to Benedict in respect to rights in the land as Bogart had been. And still less could he resist Benedict’s claim when he had received $100 in consideration of its existence.

Calkins then paid up to Van Wert the balance due on the contract, and received a deed from Niver with Van Wert’s, consent. This changed the equitable estate which he had previously had to a legal estate. But it did not permit him to violate any equitable liability under which he had come to Benedict. He was in privity with Bogart when he took Bogart’s contract by assignment. That contract was not forfeited, but was fulfilled by his payment of the balance, and acceptance of the deed. If we recur to the equitable view of the parties, Calkins, before he took the deed, was the equitable owner; and Van Wert and Niver, equitably, were the mortgagees for the balance. When he paid the balance, he satisfied the mortgage and freed his estate from the lien. But that act did not authorize him to repudiate any obligations which he had accepted or assumed as to the land.

We may illustrate this view by supposing that Bogart had sold verbally a piece of the land to Benedict; that Benedict had paid the price and gone into possession; that then Bogart had assigned the contract with Van Wert and Niver to the defendant, who had taken it with knowledge of Benedict’s claim, and to whom Bogart had made an allowance on the price in consideration _ of such claim. Would there be any doubt that in those circumstances the ■ defendant, upon assigning a deed under his contract, would have been obliged to recognize Benedict’s rights ?

The defendant insists that the principle of equity which enforces unwritten agreements in these cases applies only to executory and not to executed agreements. But this cannot be a sound distinction. One who pays the price and takes possession under an unwritten agreement is in as good a position as one who agrees thereafter to pay and takes, possession.

The defendant also insists that the plaintiff should have asked for a conveyance of the right of way, not for an injunction as to interfering with it. That may be a good suggestion. But as the parties have appeared and litigated, the court can easily give the remedy which the defendant says should have been asked. The plaintiff, on a trial, can have such relief as he may be entitled to. One who has a, contract for the purchase of land, and who is in possession, and who then enters into or assumes liabilities in respect to the land toward some other person, cannot_ repudiate those liabilities after he has obtained the legal title by virtue of his contract of purchase. Of course, if the contract of purchase were' actually forfeited, and the persons having the legal title should then convey to some one who did not claim under the contract, the case would be different. Another question would then arise which is not now before us, and which we need not decide.

The case of Smith v. Ferris (6 Hun, 553) does not affect this case. In that case the person having the legal title had retaken the land from the person who had a contract. He then contended that a highway laid out under statutory proceedings, in which only the persons holding the contract had released damages, was not a valid highway against him. How, it is not contended in this case that, as against Van Wert and Hiver, if they should lawfully annul their contract with Bogart, his acts would be binding. But these acts are binding against Bogart and those claiming under him. And Calkins, when he took his deed from Hiver (with Van Wert’s consent), claimed under Bogart, and was in privity with him. His only right to a deed was under Bogart’s contract as assignee thereof.

The judgment should be reversed and judgment rendered for the plaintiff for the relief demanded, with costs of appeal and of case.

L arbor and Williams, JJ., concur.  