This action is brought to recover the balance of the purchase price of premises alleged to have been conveyed by the plaintiff to the testatrix of the appellants. The plaintiff alleges that on or about the 28th day of March, 1895, she sold and conveyed the premises to the decedent for the agreed consideration of $40,000, payable by crediting thereon the sum of $361, which plaintiff owed to her, and the balance of $39,639 to be paid on or before the 1st day ■of March, 1897; that no part of this balance has been paid and judgment is demanded therefor together with interest from the date when it became due and payable. The material allegations of the 1 complaint were put in issue by the answer which also alleges the invalidity of the contract on the ground of the Statute of Frauds •and pleads payment and the Statute of Limitations.
Upon the trial the plaintiff showed the execution and delivery by her to the decedent of a full covenant warranty deed of the premises on the 31st day of October, 1894, reciting a consideration of $40,000, and that possession thereof was surrendered to the decedent on the 28th day of March, 1895. The premises consisted of a tract of 100 acres of land at Brentwood in Suffolk county, and the plaintiff at the time of executing this deed had good title thereto. The appellants showed by the testimony of the plaintiff upon cross-examination that contemporaneously with the execution and delivery of the deed she signed and delivered to decedent a receipt in the following words :
“ Received, Hew York, Oct. 30,-1894, of Alicia V. La Bau, the sum of $3133. as a loan, the repayment of the same to be secured by the making, execution and delivery by me on .the 31st day of Oct., 1894, of a deed conveying the property owned by me and standing in my name at'Brentwood, Long Island, State of Hew York. Elizabeth Reich. Witness, A. H. Stevens.”
The plaintiff then gave evidence tending to show, and sufficient to warrant the jury in finding, that at the- time of the execution of the deed she did owe the decedent the sum specified in the' receipt and that there was an agreement between them to the effect that, if the decedent should elect within a year to purchase the property specified in the deed, possession would then be delivered and the terms of payment of the balance of the purchase price over and *257above plaintiff’s indebtedness to her would then be agreed upon ; that on or about the 29th day of March, 1895, the decedent did so elect to purchase the premises and possession thereof was accordingly delivered on that day upon the express agreement that the balance of the purchase price as stated in the complaint, which was arrived at by crediting the agreed value of personal property upon the premises, which plaintiff owned and also sold to decedent, upon the plaintiff’s existing indebtedness to her, was to be paid on or before the 1st day of March, 1897, and this was evidenced by correspondence between the parties; that at the time the conveyance was executed the parol agreement between the parties was that the decedent was not bound to purchase, and if she did not so elect it was to operate as a mortgage; that-decedent contemplated purchasing and the instrument was executéd as a conveyance instead of a mortgage by mutual agreement and for the express purpose of avoiding the necessity of executing a deed later on should the. decedent elect to treat it- as a purchase, and that she did so elect and accepted the deed as á sufficient conveyance; that on said 28th day of March, 1895, the decedent leased the premises as her own, giving the lessee the privilege of purchasing the same for $45,000; that on the first of April thereafter she', procured insurance in her own name upon the personal property and after a fire preferred a. claim against the insurance company for the loss and executed an agreement to arbitrate the loss, and that the balance of the purchase price has not been paid.
This action was commenced on the 19.tli day of January, 1903, within six years after the balance of the purchase price became payable. Consequently the plea of the. Statute of Limitations is. not well taken. Mor has the Statute of Frauds any application. Possession has .been delivered to the purchaser and the plaintiff has fully performed on her part all of the conditions, as. the contract was construed by the parties, upon which her right to recover the balance of the purchase price depends. The promise to pay was contained in a sufficient memorandum signed by the decedent..
The principal contention on the. part of the appellants is that the instrument of October 31,1894, although a deed in form, was in fact a mortgage, and that, therefore, it was ineffectual for the. purpose of *258conveying the premises to the decedent. Even though this contention should he sustained it does not follow, I think, that plaintiff was "not entitled to recover. It is to be borne in mind that she sues for the balance of the purchase price and she shows compliance with every condition precedent agreed upon by the parties to entitle her thereto. Even though the' parties were mistaken in the legal effect of the instrument they agreed upon, it is sufficient for the purpose-of conveying title and of entitling plaintiff to payment. If, through mistake of law or otherwise, it is insufficient to convey the title, then the defendants should have alleged the facts and demanded by way of counterclaim a further conveyance which the court could, if necessary, decree as a condition of compelling payment.
I fail to see any merit in the position taken by appellants. Their . testatrix had a good record title and they seek to defeat it by evidence dehors the record, from which they claim, in effect that she? was a mortgagee in possession. They do hot show that they obtained possession in that right, and the plaintiff shows quite clearly that" the possession was given pursuant to the agreement to-purchase. But even With the evidence that the deed was to be considered as a mortgage only in case the decedent did not wish to' Complete the purchase, still the contention of the appellant should not be sustained. The plaintiff by electing to give the decedent possession pursuant to her parol election to purchase and to demand the- balance of the purchase price and by bringing this action therefor, which is an irrevocable election, would be forever estopped from asserting any right of redemption in the premises.
The appellants insist that the plaintiff has an equity of redemption In the premises. This she never asserted and does not now claim and is estopped from claiming. It, therefore, becomes unnecessary to decide whether the doctrine of the cases of Mooney v. Byrne (163 N. Y. 86) or Hughes v. Harlam (166 id. 427) and kindred cases is applicable to the case at bar, or whether the defeasance or equity of redemption which was created by parol could be released by parol so that the decedent in any event obtained a complete title on or about the "28th day of March, 1895, when she made her election to purchase, dr Whether the fact that the express purpose of having-the instrument in the form of h deed was to, have it serve and stand as a conveyance of the title, without the execution of any further *259grant, in the event that the grantee so elected within the time specified, distinguishe.s the case from those last cited and renders the doctrine once a mortgage always a mortgage inapplicable. These would be interesting questions, but their consideration is, I think, unnecessary. The learned court conducted the trial without error prejudicial to the appellants. The letter, Exhibit L, was not shown to have been authorized by plaintiff and was, therefore, properly excluded.
I am of opinion, therefore, that the judgment and order should be. affirmed.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.