26 A.D. 319 | N.Y. App. Div. | 1898
The plaintiff is the surviving administrator with the will annexed of Jeremiah Cornwell, deceased. Some of the provisions of that will were under consideration by this court in the case of Clifford
It appears, however, that the whole of said two lots are in the adverse possession of the grantees of Jefferson M. Levy, who about the year 1887 made improvements thereon and ousted the heirs and devisees from the possession thereof, and have ever since been in the actual occupation of the same, claiming title thereto in hostility to the said devisees of Jeremiah Cornwell and to the descendants of such devisees and to the plaintiff.
The purpose of this action by the vendor is to enforce against the vendee the specific performance of his contract to ■ pinchase the undivided ninth of the said lots.
By section 225 of the Real Property Law (Laws of 1896, chap. 547), re-enacting the similar provision of the Revised Statutes (1 R. S. 739, § 147), a grant of real property is declared to be absolutely void, “ if at the time of the delivery thereof such property is in the actual possession of a person claiming under a title adverse to that of the grantor,” and the entire argument of the learned counsel for the plaintiff is devoted to the proposition that this statutory provision does not apply to a sale by an executor (or an administrator with the will annexed) under a power contained in a will.
The question is an interesting one, but it cannot properly be determined in this case, for the reason that the record presents an insuperable objection to the rendition of the judgment demanded by the plaintiff, even if we should agree with him as to the non-application of the section.
We are of the opinion that the vendee cannot be compelled in equity to perform a contract for the purchase of land, where, at the time fixed for the performance of the contract, such land is actually possessed and occupied by parties claiming title and the right of possession adversely to the vendor, and those from whom the vendor’s claim of title is derived.
For these reasons the defendant is entitled to judgment in' his favor upon the agreed statement of facts.
All concurred.
. Judgment for the defendant upon agreed statement of facts.