47 Barb. 163 | N.Y. Sup. Ct. | 1866
Lead Opinion
The authorities hold, beyond any question, that when the purchaser of land has made default in the payment of money, under an executory contract, no notice to quit is necessary, nor any demand of the amount due, or of the possession, or tender of a deed, before bringing an action of ejectment. (Wright v. Moore, 21 Wend. 230. Dolittle v. Eddy, 7 Barb. 74. Candee v. Haywood, 34 id. 352.)
The main question in the present case is, whether the defendant was in default in making the payments upon the contract under which he claimed to hold the premises, to recover the possession of which this action was brought.
I have arrived at the conclusion that the defendant was in default, and hence the action was properly brought, and was maintainable, and the referee erred in dismissing the complaint. By the contract between the parties, the premises were sold for a given sum, a portion of which was paid on the sale, without any agreement as to when the defendant should pay the remainder. The deed was not to be given until the balance was paid. Under such circumstances, I think the legal effect of the contract was to make the balance payable whenever the defendant took possession of the premises. In the absence of any stipulation to the contrary, it certainly would become due when the defendant took possession, and had the benefit of the property. It being then due, any delay was for the defendant’s advantage, and from that time it appears to me that he was in default. Being thus in the wrong, the fact that he remained in possession for a number of years, without tendering the plaintiff the money and demanding a deed, does not exonerate him from his default, or help his case. If it had been for a lesser period—say for one year—it would not aid him, for the reason that it does not excuse the default, or change the principle applicable to such a case. The great length of time which he occupied and remained in possession, so long as it did not ripen into an adverse possession, can not, it seems to me,
If I am correct in these views, then the demand of the money, and the tender of the deed, by the plaintiff, was unnecessary and of no sort of consequence. And as the defendant was in default, the plaintiff could maintain the action, for that reason.
Assuming, however, that a demand was essential, under the facts existing, still I think that the judgment of the referee Was erroneous. The whole matter was before him; the complaint setting forth the agreement under which the defendant claimed to hold the premises, and the defendant claiming, in his answer, equitable relief. It was clear that the defendant had not performed the contract, on his part, and if excused from performance by reason of the plaintiff having demanded too much, the referee could have relieved him by a judgment that a deed be given, upon the payment of the proper amount.
It may also be observed that if the plaintiff demanded too much, no objection was made to the demand, by the defendant, on that ground, hi or did the defendant tender what he claimed.Was due, as he might have done, and as he was bound to do before he was entitled to a deed. The circumstances to which I have adverted should have been considered .by the referee, I think, even if a demand was essential; and his judgment should have been based at least upon the equitable rights of the parties, and should not have been a dismissal of the complaint.
The referee having erred, the judgment must be reversed,- and a new trial granted, with costs to abide the event.
Ingalls, J. concurred.
Dissenting Opinion
Hogeboom, J. (dissenting.)
This case, on examination, does not appear so plain for the defendant as it did on the
The reported cases hold, in stronger terms than I had supposed, that not only is no notice to quit necessary, before maintaining ejectment for non-performance of an executory contract for the purchase of lands, but that where the purchaser has clearly made default in the stipulated payments of the purchase money, no demand of the amount due, or of possession, or tender of a deed, is necessary before bringing ejectment. (Jackson v. Miller, 7 Cowen, 747. Whiteside v. Jackson, 1 Wend. 418. Jackson v. Shipley, 5 id. 26. Wright v. Moore, 21 id. 230. Doolittle v. Eddy, 7 Barb. 74. Stone v. Sprague, 20 id. 509. Powers v. Ingraham, 3 id 576. Candee v. Haywood, 34 352.) I cannot but regard this as unjust, and an exception to the general rule, that where a party goes into possession of property with the consent of the owner, he can not be sued to recover its possession without a specific and distinct demand terminating the lawfulness of his possession.
In the present case, no time for the payment of the purchase money was agreed upon. It is impossible to tell, precisely, what the parties intended in regard to it; although it is evident immediate payment was not expected. It was probably designed to be left very much to the convenience of the defendant, though the evidence is not sufficient to incorporate such a clause in the contract; and the referee has found nothing in regard to it. But as the defendant went into possession of the premises, it may be that the law would infer a present obligation to pay the price.
Be this as it may, it would not, I think, justify a dispossession of the defendant, without a demand of the price, or of the possession. A demand was, I think, necessary, to put the defendant in the wrong. His possession had continued, without interruption or objection on the part of the plaintiff, for nearly twenty years. The plaintiff ought not to be permitted to eject him without at least so much notice as would
And this demand, if necessary to be made, should he made in the right form, and of the right amount. Possibly a demand in a general form, as of the sum remaining due on the contract, without specifying its amount, would have answered; though on that point I express no positive opinion. ' But the plaintiff chose to make it specific; perhaps he was bound to do so. Making it in that shape, he was bound, I think, to demand the true and not an excessive amount; especially as he made the delivery of the deed conditional upon its payment. The amount thus demanded was excessive—more, by $50, than the defendant was bound to pay. And he could not get his deed without making this payment. The plaintiff was therefore clearly in the wrong in making the demand and irdposing the condition he did, and the defendant was justified in refusing compliance. Ought a justifiable refusal to comply with an illegal demand to subject the defendant to an action of ejectment ?
It is said that he should have tendered the true amount due, and that when the demand was made upon him, instead of preserving silence, he should have offered to make up the deficiency of the purchase money. This would be true, if he was the actor and seeking affirmative relief; but as he has chosen simply to occupy the position of resisting an unjust claim, and an attempted illegal dispossession, it was sufficient, I am inclined to think, to stand upon his rights and to refuse submission to an exorbitant and unfounded claim. The plaintiff in an action of ejectment must recover upon the strength of his own title, and upon the unjustifiableness of the defendant’s possession, or the withholding of the same, and should, I think, place himself in both respects upon impregnable ground, before he is permitted to oust a party of a peaceable possession maintained for nearly twenty years.
It is said that the defendant claimed affirmative relief in his answer, and therefore that the action should have been
It is said the plaintiff is now remediless, and can neither sue for the deficient purchase money, nor reclaim his land. I do not regard this action as a bar. It is simply in the nature of a nonsuit. Moreover, it was decided expressly upon the ground of an extravagant demand, and not upon the ground that the plaintiff would not have been entitled to relief, if his demand had been of the true amount due. These facts can always be proved, and leave the matter open for a new action.
I think the offered testimony was properly rejected. The defendant had made certain payments apparently applicable upon the contract. This application, sworn by the defendant to have been agreed by the parties to be made, could not be resisted, or prevented by an arbitrary act of the plaintiff in applying the amount elsewhere, and upon general account. The offer should have gone further, and shown an agreement of the parties to apply the money in the mode insisted on by the plaintiff.
On the whole, though the case is not entirely free from difficulty, I am in favor of affirming the judgment of the referee.
New trial granted.
Miller, Ingalls and Hogeboom, Justices.]