175 A.D. 749 | N.Y. App. Div. | 1916
By a parol agreement the defendant, who was the owner of a village lot, agreed to sell it to the plaintiff for seventy dollars and to deed him the property as soon as her deed came back from the county clerk’s office, and it was agreed that the
It is inequitable that the defendant may have the benefit of the improvements without paying therefor. At the time the agreement was made she either intended to carry it out or to repudiate it and get the benefit of the improvements. There is nothing to indicate what, if anything, caused her to change her mind and repudiate the agreement after it was made. The plaintiff clearly contemplated that he was making the improvements for his own benefit and very probably the defendant contemplated that the improvements were being made for her benefit.
There can be no quarrel with the cases which hold that where a purchaser upon an executory contract of sale has the right to enter into possession and make improvements befoi'e conveyance, and fails to perform the contract upon his part, that the vendor cannot be charged with the value of improvements made by or for the vendee under such circumstances, and in that manner be improved out of his property. This is not such a case. The parol agreement when made was void under the Statute of Frauds, and if the defendant did not carry it out the improvements as matter of law would be for her benefit. Her consent, therefore, that the plaintiff might enter into possession and make the improvements, followed by her refusal to carry out the agreement and convey the premises may well be considered a consent under the Lien Law that the improvements be made. The parol agreement and its breach by the defendant are only important to show that the improvements were made upon her land with her consent and for her benefit. She cannot repudiate the agreement and then claim that the plaintiff, as owner, made the improvements upon her land for
The judgment should, therefore, be reversed upon the law and the facts, with costs, and judgment directed for the plaintiff adjudging the validity of such lien and providing for its foreclosure, with costs.
All concurred.
Judgment and order reversed on law and facts, with costs, and judgment directed for plaintiff adjudging the validity of such lien and providing for its foreclosure, with costs. The court disapproves of the findings of fact numbered three, four and five.