Plet v. . Willson, 134 N.Y. 139

Plet v. . Willson

134 N.Y. 139 | NY | 1892

Lead Opinion

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *141 When the vendees made default in payment the vendor, who still had the title, might have proceeded in disaffirmance of the contract by an action of ejectment to recover possession. Such an action is governed by the twenty year limitation. (Code C.P. § 365.) While a possible result of the present suit might be to secure possession by the vendor, it is not an action for the recovery of real property within the meaning of that section (Miner v. Beekman, 50 N.Y. 337; Hubbell v. Sibley, Id. 468.)

The vendor's other remedies were in affirmance of the contract and were two in number. 1. A common-law action against the vendees to recover the balance of the purchase-price. 2. A suit in equity to foreclose the contract. Whether the vendor should elect to enforce the collection of his debt through a personal judgment against his vendees or by means of a foreclosure and sale of the property, his action would be on the contract which the vendees had failed to perform. Sections 380 and 382 of the Code of Civil Procedure provide that an action upon a contract, obligation or liability, express or implied, except a judgment or sealed instrument, must be commenced within six years after the cause of action has accrued.

As the contract in suit was not under seal the sections quoted apply, and more than six years having elapsed after the cause of action accrued and before the commencement of this suit, it is barred.

The judgment should be reversed. *142

Dissenting Opinion

I cannot concur. I do not think the action is strictly upon the contract; it respects the equitable disposition of lands of which the plaintiff has the legal title, and the defendant such equities as his partly performed contract gives him. Defendant refuses further performance, but retains possession of the land. Equity requires that the land be converted into money and the money be equally distributed. The judgment appealed from provides such relief. If plaintiff had given defendant a conveyance of the land and this action were simply to enforce his equitable lien for the unpaid purchase-money, the debt would be the substantive cause of action and the right to equitable relief would be barred with the debt itself. (Borst v. Corey, 15 N.Y. 505.) In that case the plaintiff had parted with his title, and had only the lien which equity gave him. Here the plaintiff retains his title, and the defendant has only such equities as his part performance gives him. These two estates in the land, the one legal and the other equitable, may co-exist for an indefinite period unless the parties merge them. The defendant refuses to act as he has agreed, and the plaintiff willing to do equity seeks its aid, not strictly to enforce his equitable lien, but to obtain from his own land what it ought as between him and the defendant to yield him. His action for the debt may be barred, but this right to make an equitable disposition of his land and its proceeds continues to exist. (Lewis v. Hawkins, 23 Wall. 119; Hardin v. Boyd, 113 U.S. 757.) The six years' limitation under section 382 does not apply, and the ten years' limitation under section 388 had not expired when this action was commenced.

All concur with PARKER, J., except LANDON, J., dissenting, and FOLLETT, Ch. J., not sitting.

Judgment reversed. *143