69 N.Y.S. 378 | N.Y. App. Div. | 1901
This action was commenced to recover possession of the farm occupied by the defendant. The complaint is the usual one in ejectment. It alleges that Anthony Burnett died intestate September 2, 1873, leaving his brother, the father of the plaintiff, as one of his three heirs at law; that this brother died intestate, leaving his widow and three children him surviving; that the plaintiff has acquired the title of which her father died seized, and now owns an undivided one-third of the premises subject to the dower interest of her mother.
This affirmative defense, if proven, is absolutely decisive against the plaintiff. Evidence permissible under it would establish defendant’s occupancy by agreement with the plaintiff’s ancestor, and that the vendee has fulfilled whatever obligations were imposed upon him by it; that his possession, instead of being wrongful, is supported by his agreement, and that he is entitled to a deed vesting the legal title in him.
To be sure, the agreement in terms does not .award possession to the vendee, but he was to pay the taxes, and did in fact enter in possession immediately, indicating unmistakably that was the intention of the parties. Payment of taxes and interest imply that occupancy was expected.
Again, the answer is criticized because it does not aver in specific ■.
After the agreement the legal title remained in the vendor, but he held it as the trustee of his vendee. Upon the death of the vendor the unpaid purchase money went to his administrator but his heirs at law could be compelled to convey. ( Williams v. Haddock, 145 N. Y. 144.) The payment to the administrator was, therefore, proper, and the purchaser had a right to insist that a conveyance of the legal title to him should be simultaneous with full payment of the balance of the purchase price.
A demurrer is also interposed to that part of the 3d paragraph of the answer which alleges “ that the cause of action stated in this complaint did not occur
The last defense alleged may contain allegations which are unimportant and possibly might be stricken out. on motion, but we ' are of the opinion that the part objected to is not demurrable. -
The judgment should be affirmed, with costs to the respondent.'
All concurred, except McLennan,’J., not sitting.
Judgment affirmed, with costs. ' '
Sic.