The plaintiff sues to recover payments on an. executory contract of purchase and sale of real property alleged to have been made by him, the vendee, under a mistake of fact. The plaintiff alleges that intermediate the execution of said contract and the making of said payments the city of Rew York acquired title to the property under the right of eminent domain, of which fact he was ignorant when said payments were made.
It is not necessary to cite authority for the familiar proposition that the vendee under an executory contract of purchase and sale has the equitable title, the vendor holding the legal title merely as security for the payment of the purchase money. The plaintiff’s *283theory is that the contract was abrogated by the condemnation proceedings ; but no authority is cited in support of that proposition, and no reason is urged or suggests itself to us for so holding! The contract is not abrogated. (Randolph’s Law of Eminent Domain, § 170.) The damages awarded in the condemnation proceeding belong to the vendee, subject of course to the lien of the vendor, and if the latter receives them, he does so as trustee for the former. (McIntyre v. Easton & Amboy R. R. Co., 26 N. J. Eq. 425; Pinkerton v. Boston & Albany R. R. Co., 109 Mass. 527; Stevenson v. Loehr, 57 Ill. 509.)
This is not a case of thrusting the equities of a party on him, but of holding him to his contract. The vendor is able to give him all he contracted to. The State has intervened and under its right of eminent domain substituted for the land its value. In legal effect as between vendor and vendee the award becomes the subject of the conveyance. The plaintiff took the equitable title subject to the exercise of the right of eminent domain, precisely as though the legal title had been transferred, and the possibility of the land being taken for public use should be deemed to have been within the contemplation of the parties. The taking of land by proceedings in invitum is in a legal sense a purchase and sale (Vandermulen v. Vandermulen, 108 N. Y. 195), and of course the equitable owner must be deemed the vendor. In the case of Parks v. Boston (15 Pick. 198), cited by Andrews, J., in the Vandermulen Case (supra), it was held that a lease was not extinguished or the lessee discharged of the obligation to pay the reserved rent during the residue of the term. In the course of his opinion in that case, Shaw, Ch. J., said : “ But upon what principle can it be maintained, that a lessee under such circumstances would be exempted from the payment of the stipulated rent? The lessee takes his term, just as every other owner of real estate takes title, subject to the right and power of the public to take it or a part of it, for public use, whenever the public necessity and convenience may require it. Such a right is no incumbrance; such a taking is no breach of the covenant of the lessor for quiet enjoyment. The lessee then holds and enjoys exactly what was granted him, as a consideration for the reserved rent; which is, the whole use and beneficial enjoyment of the estate leased, subject to the sovereign right of eminent domain on the *284part of the public. If he has suffered any loss or diminution in the actual enjoyment of this use, it is not by the act or sufferance of the landlord ; but it is by the act of the public, against whom the law has provided him an ample remedy.” ^
The demurrer should have been sustained.
Jenks, Hooker and Eran, JJ., concurred; Gaynor, J., read for affirmance.