Moore v. Burrows, 34 Barb. 173

Moore v. Burrows

34 Barb. 173 | N.Y. Sup. Ct. | 1861

E. Darwin Smith, J.

The agreement set out in the complaint in this action, although it has in it some peculiar and special provisions, is in legal effect an ordinary contract for the conveyance of land on the payment of the purchase money. In such cases the estate vests, in equity, in the vendee, and the vendor retains the legal title as a mere lien for his security for the unpaid purchase money. The interest of the vendee in the contract is real estate, and goes to the heirs and not to the executors, (Champion v. Brown, 6 John. Ch. 398; Griffith v. Beecher, 10 Barb. 434; 18 id. 83;) and the same may be sold on application of the executors or administrators of the vendee, in the same manner as if he had been seised of such land. (3 R. S. 5th ed. 199, § 78.) And the widow is also entitled to dower therein. (Id. §§ 84, 85.) *175Upon the decease of the vendor in such a contract his interest! in the contract is personal property, like a hond and mortgage, j and goes to his personal representatives, and the -contract| should he embraced in the inventory of his estate by his executors or administrators, as a security for the payment of money under section 12 of art. 1st, title 3d, chap. 8th of the 2d part of the revised statutes, (vol. 3, 5th ed. 170.) It follows that this interest of the original vendor in a contract of this kind will pass by assignment, like a bond and mortgage, with or without seal, and-also that it may be sold as personal property by his executor or administrator. (Bogert v. Hertell, 4 Hill, 506.) The sale of the contract, therefore, by the administrator, as stated in the complaint, gave a good title to John Thompson to receive the moneys remaining due on the same at the decease of William and Sarah Burrows. The assignment, too, by Josiah W. Burrows of his interest in the contract, as stated in the complaint, conveyed to the plaintiff all his interest therein, and entitled the plaintiff to pay up said contract and receive a conveyance of the land from the heirs of William Burrows. Such heirs took the title byl descent as a mere security in equity for the payment of the) debt, precisely as they would have taken it by deed, to hold in trust as security for a debt due to a third person. The debt was due in this case to the executor, and the lien was held by the heirs in trust and simply as a pledge or security for its payment. On payment of the debt, the heirs are compellable in equity to execute the trust by a conveyance of such title. (2 R. S. 194.) In this view of the rights of the parties, the defendants are not entitled to raise any of the questions presented on the argument relating to the sale or assignment of the contract and the payment of the amount due thereon on a waiver of such amount, except so far as to see that the plaintiff is entitled to a deed of the premises on the basis of a full performance of the contract on the part of Josiah W. Burrows or the plaintiff as his assignee. The heirs of William Burrows cannot be called on to convey till *176the debt is paid. They have no interest in the question when or how it is paid, so long as the contract remains in force. All the questions raised on these demurrers, I think, were rightly disposed of, so far as they were passed upon by the court. But there is a point taken here, which I presume was not taken at special term, that it is not alleged that Wil- ■ liam Burrows died seised of the property in question, or that the title to said premises is vested in the defendants by descent or otherwise. This I was inclined to think a fatal defect in the complaint, but my brethren think otherwise, and that the complaint states all that the plaintiff will be bound to prove on the trial; and that is sufficient under the code. The order of the special term should therefore be affirmed.

[Monroe General Term, March 4, 1861.

Knox, J. concurred.

Johnson, J. dissented.

Order affirmed.

Smith, Johnson and Knox, Justices.]