McBurney v. WellmanMcBurney v. Wellman
By the Court,
Upon the facts found by the learned judge before whom this cause was tried, without a jury, I am entirely satisfied that his conclusions upon the law are errоneous. From his findings upon the facts, it appears that the defendant had a contract from one Hunting, for the purchase of the land in question, whiсh, at the time of the conveyance from Hunting to the plaintiff, had about a year to run; that the defendant had entered into possession under this contract, and had occupied the land about seven years, and had made valuable improvements on it, cultivated it as a farm, and was thеn in the actual possession thereof. Under this contract the defendant Well-man had the clear equitable title to the said lots. His interest in.the lаnd would have gone, on his decease, to his heirs, as real estate, and his widow, if he had left one, would have been entitled to dower in it. (6 John. Ch. 398. Moore v. Burrows, 34 Barb. 174. Adams v. Green, Id. 179. 10 id. 434. 18 id. 83.) The contract between Hunting and Wellman is not set out in the case, and its terms do not distinctly appear; but it is stated in the findings of the judge that the defendant went into possession of the premises, under his contract. This finding, I think, implied that he was entitled under the contract to go into possession of the land, and as his оccupation for seven years had been acquiesced in by Hunting, and his right to a deed was recognized by him, and the contract had not yet exрired, I think it must be considered that he was rightly in possession, and was entitled, as against Hunting himself) to retain such possession till default was made in his payments upоn the contract. In this view of the defendant’s rights, as between himself and Hunting, the latter could not
X, 0. Smith, Welles and K Darwin Smith, Justices.]