Plett v. Willson

• Decision Date: 07 June 1892
• Citation: 31 N.E. 336,134 N.Y. 139
• Parties: PLETT v. WILLSON et al.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 139

31 N.E. 336

PLETT

v.WILLSON et al.

Court of Appeals of New York,

Second Division.

June 7, 1892.

Appeal from supreme court, general term, fourth department.

Action by Maurice Plett against Fowler Willson, Jr., and the administratrix of Fowler Willson. Sr., deceased, to foreclose an unsealed contract for the sale of land by plaintiff to the Willsons. Defendants pleaded the statute of six years' limitation. From a judgment of general term entered on an order affirming a judgment for plaintiff, defendants appeal. Reversed.

The other facts fully appear in the following statement by PARKER, J.:

H. S. Willson, for appellants.

E. O. Worden, for respondent.

In 1870 the plaintiff, Fowler Willson, and Fowler Willson, Jr., executed a written contract, not under seal, by which the plaintiff agreed to sell, and the Willsons agreed to purchase, land at an agreed price, to be paid for in annual installments, with annual interest, the last payment falling due April 1, 1880; Upon which date the plaintiff, upon receiving full payment of the purchase price, was to convey the land to the vendees by a warranty deed. The vendees took immediate possession of the land under the contract, and remained in possession thereunder until May 31, 1875, when Fowler Willson, Jr., assigned his interest in the contract to Fowler Willson, (his father,) the two having then paid $1,415.66 towards the purchase price and interest. Thereafter Fowler Willson continued in possession until August 4, 1877, when he died intestate, leaving Sarah Willson, his widow, and several heirs at law. Between May 31, 1875, and August 4, 1877, Fowler Willson paid $150 on the contract. August 5, 1878, said Sarah Willson received letters of administration upon the estate of said Fowler Willson, deceased. Since the death of Fowler Willson his widow and heirs have remained in possession of the land, and were in possession at the time of the trial. Between the date of the death of Fowler Willson (August 4, 1877) and April 3, 1880, said widow and heirs paid (exclusive of $192.50 paid May 6, 1877, by Eamed & Smith under an order of the special term granted March 10, 1877) $345. Payments were made annually, except in the year 1877, on this contract, from its date until April 13, 1880, when the last one, except said $192.50, was made. This action was begun January 8, 1887, to foreclose the contract and apply the avails towards the payment of the remainder of the purchase price, and a judgment for any deficiency that might arise was asked for against Fowler Willson, Jr., and the administratrix of Fowler Willson, Sr., in her representative capacity. The defendants interposed the six-years statute of limitations as their sole defense, and it was held not good, following Plett v. Willson, 4 N. Y. Supp. 507, and a judgment in favor of the plaintiff was rendered.

PARKER, J., ( after stating the facts.)

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 20-years limitation. Code Civil Proc. § 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, 50 N. Y. 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...