This is an action to compel the determination of a claim to certain real property brought under section 1638 of the Code. It is alleged, and the jury upon sufficient evidence found, that on March 1, 1887, the plaintiffs, as tenants in common, agreed to purchase the land in dispute from the then owner. The agreement was not in writing, but the plaintiffs, in pursuance of a verbal agreement of sale and purchase, went into actual possession, paid a part of the purchase price, have since paid the taxes, cultivated and improved the land and erected a house thereon. They have also paid and satisfied a pre existing mortgage which they had assumed as *Page 449 part of the purchase price. On the 31st of March, 1890, having fully performed the agreement, they received a deed from the owner, one Philip Brown, in pursuance of the agreement.
The defendant claims title under a sheriff's deed executed March 10, 1893, and a sale upon execution May 16, 1891. The deed, judgment and execution are based upon an attachment in an action against Philip Brown, the plaintiff's vendor, levied upon the land February 4, 1890, and before the plaintiffs procured their deed, but after the agreement and while they were in possession.
The jury found for the plaintiffs on all the issues of fact in the case, and the judgment upon the verdict has been affirmed at the General Term.
The defendant's contention in support of the appeal is twofold: (1) That the agreement under which the plaintiffs went into possession of the land, and which is the basis of their title, was not in good faith, but a device contrived between themselves and Philip Brown, the vendor, and their relative, for the purpose of defeating the payment of the claim of the defendant, sought to be enforced by the action in which the attachment was issued, and which subsequently matured into a judgment under which the execution sale was had. With respect to this question it is quite sufficient to say that it was a question of fact which has been determined by the verdict against the defendant. The jury has found that there was no fraud in the transaction, and this finding concludes the defendant upon appeal in this court.
(2) The other contention is that the plaintiffs had no such title to the land as the statute requires in order to enable a party to maintain this peculiar form of action. The plaintiffs were bound to show that they were in possession of the land, claiming it in fee or for life or for a term of years. They claimed to be the owners in fee under the deed from the prior owner. This deed, though given subsequent to the levy of the attachment under which the defendant claims, was but the final consummation of the pre-existing verbal agreement under which the plaintiffs went into possession. When *Page 450 this deed was given the verbal agreement had been performed and the plaintiffs were entitled to the conveyance. It may be true that when the attachment was levied the naked legal title was in the defendant named in that process, but he had no real or beneficial interest upon which a legal lien could be based. The plaintiffs had the whole equitable title, with the possession and the right of possession. Their vendor, against whom the attachment issued, was at most but a trustee of the legal title for their sole benefit. The legal title was subsequently conveyed to them by the deed, and when this action was commenced the plaintiffs had just such a title as the statute requires in order to enable a party in possession to maintain an action to determine a hostile claim. When a party is in possession of land under a contract of sale, verbal or written, which has been fully performed, he is, in every substantial sense, the owner, and may defend and protect his possession and interest in the same way as if he had a deed. He is then entitled to a conveyance from the party holding the nominal title for his benefit; and if, before such conveyance is executed, third parties recover judgment against the trustee, the lien of such judgment does not attach to the land which the party in possession has bought and paid for. When possession is taken and the contract performed, equity will regard as done what ought to have been done. We think that the plaintiffs had such a title as to enable them to bring and maintain the action, and so it has been held. (Schroeder v.Gurney, 10 Hun, 413; affd., 73 N.Y. 430; Bohn v. Hatch,133 N.Y. 64; Kent v. Church of St. Michael, 136 N.Y. 10;Diefendorf v. Diefendorf, 132 N.Y. 100.) The Statute of Frauds, even had it been pleaded (Crane v. Powell, 139 N.Y. 379), has no application to such a case. The contract was fully executed, and before the commencement of this action was merged in a deed which vested the legal title in the plaintiffs.
The judgment should be affirmed, with costs.
All concur, except MARTIN, J., not sitting.
Judgment affirmed. *Page 451