48 Barb. 330 | N.Y. Sup. Ct. | 1867
By the contract between the parties of the date of J une 3d, 1862, the plaintiffs agreed to sell, and the defendant to purchase all the right of the plaintiffs in the premises therein described, for the consideration of $200. The plaintiffs had a leasehold interest in the premises, subject to a rent of $70 per annum, which term would expire on the first of March thereafter, with the privilege of a renewal for two years longer, from the said first of March. The building on the premises was erected by the plaintiffs, but it does not appear that they had any right to remove it from the demised premises at the end of the term. It was, therefore, a fixture attached to the freehold, and was part of the realty. The agreement between the parties was, therefore, a contract for the sale of an interest in land. The defendant was authorized to take immediate possession. The payment of the consideration was to be made upon demand, as no time was fixed for its payment. Strictly, perhaps, the plaintiffs could not have required payment till they tendered an assignment of the lease, and gave the defendant possession. The contract, however, was absolute, and vested in the defendant the equitable interest in the land the moment it was executed and delivered. (Moore v. Burrows, and Adams v. Green, 34 Barb. 173 and 183.) This action is for the $200 consideration money specified in the contract, and the plaintiffs showed at the trial that they had tendered an assignment of their lease of the premises and also a quit claim deed thereof in execution of the contract, and demanded payment. The defendant showed nothing in the shape of a defense to the action, at the trial. It is true, he did not get possession, and could not for several days after the execution of the contract; but that did not avoid the contract. He purchased the plaintiffs’ interest in the land as it was at the time, and was content to take the contract with a provision authorizing him to take immediate possession.
' This was not a covenant for. the immediate possession, or a condition therefor, the breach of which avoided the contract.
New trial denied.
Welles, E. D. Smith and Johnson, Justices.]