118 N.E. 792 | NY | 1918
This is an action to foreclose a vendee's lien.
In October, 1910, one Glass was the owner of a farm in Erie county. He made an oral contract to sell it to one Whiting for $6,500. He was to take in part payment a stock of groceries and fixtures of the agreed value of $2,625. The contract described the farm as containing 100 acres. Before the time set for closing title, Whiting made delivery of the groceries and fixtures. He learned later that the farm contained only 93 7/10 acres. The deficiency, 6 3/10 acres, had been taken for railroad purposes. He tendered full performance on his part and demanded a conveyance in accordance with his contract. The finding is that performance was refused by Glass.
Upon this breach of the contract, Whiting made an assignment of all his cause of action and of any equity in the land to Flickinger, the plaintiff. In spite of this assignment, he sued in his own name for the value of the groceries and fixtures. We know from our own records that the judgment was reversed in this court on the ground that he was not the real party in interest and, therefore, could not sue (Whiting v. Glass,
There is no inconsistency between an action to recover the payments made by a vendee and an action to declare them a lien upon the land. The two remedies are concurrent. The plaintiff, in suing through Whiting for the value of the groceries and fixtures, did not elect to treat the contract as void in its inception. He is not in the position of the plaintiff in Davis
v. Rosenzweig Realty Co. (
The argument is made that even if the lien survived *409
the choice of remedies, there was none the less a waiver of lien through the reduction of the claim to judgment. One may abandon a lien as vendor or as vendee by the acceptance of a new security (Maroney v. Boyle,
One other point is to be noticed. The argument is made that this court is without jurisdiction of the appeal. It is said that the action is one to set aside an instrument as in fraud of the rights of creditors (Code Civ. Pro. § 191, subd. 2, since amended by L. 1917, ch. 290). A judgment in such an action when unanimously affirmed by the Appellate Division, is not reviewable here of right. It is true that there are allegations in this complaint that the mortgage by Glass to his wife was made in fraud of creditors, and that the plaintiff's lien should be held superior. But the plaintiff does not need to prove the fraud in order to prevail. This is plainly *410
so as against the husband. It is true also as against the wife. Even though there was no fraud, the mortgage yields to the lien unless it was taken without notice, actual or constructive, of the rights of the vendee; and the burden of proof is with the defendants to show that notice was lacking (Seymour v.McKinstry,
The judgment should be reversed and a new trial granted, with costs to abide the event.
HISCOCK, Ch. J., CHASE, HOGAN, POUND, McLAUGHLIN and ANDREWS, JJ., concur.
Judgment reversed, etc.