22 Barb. 260 | N.Y. Sup. Ct. | 1856
The plaintiff was in possession of the premises several years, claiming title; and the defendant went into possession under a contract between the parties, whereby he agreed to purchase the improvements of' the plaintiff, and his title to the premises, as soon as it should be settled, if it should prove to be good, the title as stated in the contract being then in dispute. This was abundant evidence of title in the plaintiff to sustain the action, aside from the rights of the defendant under the contract. The prior possession of the plaintiff was prima facie evidence of his title; and the defendant, by taking possession under him, was precluded from 'disputing his title, except to show that the defendant was not in default in performing the contract. This is so, notwithstanding the recital that the title was in dispute, as a better title than the plaintiff’s is not recognized.
We are then to inquire, whether under the contract the defendant is entitled to the possession of the premises. The contract does not in terms give the defendant a right to the possession. If it gives him such a right, the right must be implied. In an ordinary contract for the sale and purchase of land, which is silent in respect to the possession, a license to enter will not be implied. The contract in the present case is peculiar. The plaintiff agrees first to sell his improvements on the lot to the defendant, for which the latter agrees to pay a specified sum at the date of the contract. It is not stated, and does not appear, in what the improvements consist, and no explanation is given as to the meaning which the parties attached to the term. And there is no evidence whatever,
"The plaintiff having given the defendant the possession, if he was not entitled to it under the contract, does not affect the plaintiff’s right to recover. Hor can that act, subsequent to the contract, aid in the construction of the contract.
But assuming that the defendant was by the contract to have possession, no time being specified for its continuance, if the defendant has made default in performing the contract, his
My conclusion therefore is, that the judgment at special term is right, and should^be affirmed.
T. R. Strong, Welles and Smith, Justices.]