Plet v. . Willson

Parker, J. 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 twenty year limitation. (Code C. P. § 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, Id. 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 contract which the vendees had failed to perform. Sections 380 and 382 of the Code of Civil Procedure provide that an action upon a contract, obligation or liability, express or implied, except a judgment or sealed instrument, must be commenced within six years after the cause of action has accrued. As the contract in suit was not under seal the sections quoted apply, and more than six years having elapsed after the cause of action accrued and before the commencement of this suit, it is barred. The judgment should be reversed.