No personal claim is made against the defendants, but plaintiff is seeking to recover out of the property, an amount which the demurrer admits to be unpaid on said contract of January 24, 1881. ..
That the foregoing facts vest the plaintiff with a good cause of action for the relief sought admits of no doubt. Although Mrs. Warren did nbt receive the deed' under the foreclosure sale she became entitled'thereto and was the equitable owner of the property by virtue of such sale. The delivery of the deed to lier was a mere formality, and so far as the facts appear she could at any moment have possessed herself of the same. The rights of the parties as they then existed were that Carroll, by virtue of such contract of January 24, 1881, became the equitable owner of the property and entitled to a deed thereof from Mrs. Warren, and all that the latter had were such rights as she acquired under said contract. The..failure of the parties to consummate such contract was not her fault. According to the complaint she was able to perform her contract with Carroll and offered to do so. Carroll recognized the contract by remaining in possession thereunder, and making payments on account thereof. His successors cannot very well claim that there was a failure to perform on the part of. Mrs. Carroll. When . she *305died, therefore, the equitable status of the parties was that Carroll was entitled to a deed of the property, and Mrs. Warren had only such rights as were accorded to her by said contract.
Whether such rights belonged to her individually or as the representative of the estate of William L. F. Warren, deceased, in either event they were duly assigned to Susan W. Bryan, plaintiff’s testatrix, by the representatives of the estates both of William L. F. Warren and Eliza Warren respectively, and thereby plaintiff’s right to enforce such contract becomes unquestioned.
We need not indulge in any refinement of reasoning ás to who) strictly speaking, should have received the deed of the property after Mrs. Warren’s death. Under her contract with Carroll she in her lifetime became entitled thereto only for the purpose of transferring the title to him. The deed under the foreclosure judgment might have been executed directly to him in consummation of such contract on his complying with the terms thereof. It was in fact executed to Susan W. Bryan who had succeeded to the rights of Mrs. Warren in said contract, and who recognized Carroll’s right to the property and held the title for his benefit and offered to convey it to him. ISTo other person had any right to the deed save in confirmation of his title. If no deed had been executed it would not change the situation under the circumstances here appearing, but the court would establish the rights of the parties according to their contract. The fact that Mrs.' Bryan received the deed, even if irregular, is inconsequential in view of' the fact that both she in her lifetime and her successor since her death held the title for the benefit of Carroll and his successors. The allegation in the complaint that the residuary legatees under the will of William L. F. Warren, deceased, became entitled, on the death of Mrs. Warren, to a deed of the said premises, is not a statement of fact but a conclusion of the pleader, which, if erroneous, may be disregarded.
It is suggested that Mrs. Warren was not authorized to make the contract in behalf of her decedent’s estate, or to dispose of the property. As incidental to her authority to foreclose the mortgage she also had power to dispose of the property which came to the estate, and which was a part thereof by virtue of such foreclosure^ and which stood in the place of the mortgage.
*306It is further urged that as the contract was to be effective only in case Mrs. Warren should complete the foreclosure of' the mortgage and become the purchaser of the property at the foreclosure sale, she did not absolutely bind herself to convey ¡the property to Carroll, and that hence the contract lacked mutuality. When Mrs. Warren became the equitable owner and capable of conveying the property, and Carroll was in possession thereof under the contract and made payments thereon, she became obligated to fulfill the contract, and from that time forward, irrespective of the prior status of the parties, the contract has been mutually enforcible. The appellant may. not retain possession of the property without responding to the corresponding obligations resting upon him.
The only relief plaintiff seeks herein is of an equitable nature. With a perfect claim of right under the contract he is endeavoring to enforce, and with the appellant in possession of the property without a shadow of right thereto save under such, contract, a plain case is presented to a court of equity for such relief as is sought.
The interlocutory judgment should be affirmed, with costs,, and with leave to the appellant, on payment of such costs and of the costs in the court below: to withdraw the demurrer and serve an \ answer.
All concurred.
Interlocutory judgment affirmed, with costs, with leave to appellant, on payment of such costs and the costs in the court below, to withdraw demurrer and serve an answer.