Plett v. Willson

4 N.Y.S. 507, 57 N.Y. Sup. Ct. 60, 23 N.Y. St. Rep. 879

• Court: New York Supreme Court
• Decided: November 15, 1888
• Status: Published

Opinions

Per Curiam.

Under the contract the vendees became the owners of the land, and trustees for the payment of the contract price; and the vendor became the owner "of the purchase price, retaining the legal title as trustee for the vendees, and as security for the payment of the purchase price. Sanders v. Aldrich, 25 Barb. 63; 2 Story, Eq. Jur. § 789; Pom. Eq. Jur. §§ 372, 1161; Thomson v. Smith, 63 N. Y. 303. This interest of the vendor is frequently called the “vendor’s lien;” but it is more, as he holds the legal title, of which he cannot be divested by the vendee until the purchase price is paid, unless the land is held adversely for 20 years. 3 Pom. Eq. Jur. § 1261; Freeson v. Bissell, 63 N. Y. 170. The right to foreclose a mortgage upon real' estate, given to secure the payment of a promissory note, is not barred because an action on the note is barred. Heyer v. Pruyn, 7 Paige, 465; Pratt v. Huggins, 29 Barb. 277; Gillette v. Smith, 18 Hun, 10; Thayer v. Mann, 19 Pick. 535; Belknap v. Gleason, 11 Conn. 160; 14 Alb. Law J. 209; 2 Jones, Mortg. §§ 1203-1205. In the ease of a mortgage, a lien is created to secure a debt; but, in the case of an executory sale, the entire legal title is reserved until the purchase price is paid. There seems to be no reason why the same statute of limitations should not apply to both cases. When the vendee, or his successor in interest, continues in possession, claiming under an executory contract, an action to foreclose the contract is not barred by the lapse of six years between the date of the last payment (all payments being due) and the date of the commencement of the action. Lewis v. Hawkins, 23 Wall. 119; Hardin v. Boyd, 113 U. S. 756, 5 Sup. Ct. Rep. 771; Hopkins v. Cockerell, 2 Grat. 88; Wood, Lim. § 232, and cases there cited. The fact that this contract was not sealed, does not diminish the legal title which remained in the vendor, nor render it less efficient as a security.

It is to be observed that there is no evidence that either of the parties to the contract have formed, much less expressed, an intent to rescind the contract. On the contrary, the defendants are now in possession, claiming under no right except that conferred by the contract. This is an action, the limitation of which is not specially prescribed in title 1 or 2 of chapter 4 of the Code of Civil Procedure, and it could be begun within 10 years after the cause of action had accrued. Code Civil Proc. § 388. There are many authorities to the effect that the relations between a vendor and a vendee, in possession under an executory contract, create an express trust, which continues until the contract is mutually performed or is rescinded by the one or the other, and that the statute never begins to run so long as the relations exist; but it is not necessary to go so far in this case, for, assuming that the plaintiff’s cause of action accrued (within the meaning of the sections of the Code which limit the time within which actions must be begun) April 3, 1880, the date of the last payment, and the statute then began to run, 10 years had not elapsed. Borst v. Corey, 15 N. Y. 505, is not in point. ' In that case the land had been conveyed, and the grantor had what is known as the vendor’s equitable lien for the unpaid purchase money not otherwise secured. This lien never becomes a legal one until declared by a court, and, when an action for the recovery of the purchase price is barred, there is nothing for a court of equity to lay hold of. There is no remaining title in the vendor, as in the case at bar. Our attention is called to the cases in which it is held that, where there are concurrent and perfect remedies at law and in equity, a suit in equity is barred in the same time that an action at law is barred. The vendor had three remedies: (1) Ejectment, a legal action for the recovery of the land; {2) to foreclose the contract; (3) to recover the debt. It cannot, we think, be successfully claimed that an action of ejectment would be barred within less than 20 years. The views which we have taken of this case render it unnecessary to consider the relevancy of the eases in which it is held that actions for the specific performance of executory contracts for the sale of lands may, at least, be maintained by either party within 10 years after' the last payment. The judgment is reversed, and a new trial is ordered, with costs to abide the event.