Mitchell v. . Bartlett

Lott, Ch. C. The judgment, under which the sale by the referee to the plaintiff was made, provided, that the purchaser should be let into possession of the premises purchased, on the production of the referee’s deed. That deed was not delivered to him until the second day of August, 1865. He therefore did not acquire either the title or the right to the possession of the land or to the rents thereof till that time. The defendant, up to that time, continued to be the owner of the equity of redemption, and as such was entitled to such possession and rents. The plaintiff consequently had no legal right to demand or recover of the defendant the rents that had been paid to him up to" that period. It is, however, claimed on behalf of the appellant, using the language of the points of his counsel, “ that the case is governed by the rules and principles applicable to vendors and purchasers, as settled by courts of eguit/y, and not by those principles which guide courts of law, in determining the legal rights of purchasers against other parties as tenants, and which depend upon a strictly legal title, and the law relating to title paramount, attornment, landlord and tenant,” and that “ the rule is that, between vendors and vendees and their privies, equity considers that agreed to be done as actually performed at the time when it should have been performed. The vendee, in equity, is considered as the owner of the premises from that time, and entitled to the rents and profits, and the vendor is entitled to interest on the unpaid purchase-money from that time.” *452 The referee, as appears by his conclusions of law, which were the basis of his judgment in favor of the plaintiff, adopted that rule so far as to decide that, in equity, “ the transaction of October 4th, 1864,” as he terms it, was “ in substance and effect (so far as respects the rights of the parties to this action) a contract of sale of the premises in question under the terms and conditions ” expressed in the memorandum of sale, and that “ by virtue of said contract of sale the lands became the property of the vendee, subject to a lien for the purchase-money and all other rights and' obligations reserved by said memorandum of sale.” Assuming the general rule in equity to be as claimed, it has no application in this case. The plaintiff and defendant do not bear the relation of vendor and vendee to each other, and the said “transaction” of October 4, 1864, was in no sense “ a contract of sale ” between them. The defendant had no right, power or authority to deal with the purchaser. The foreclosure proceeding was in hostility to him, under an adverse proceeding by a mortgagee seeking to recover the amount due on his mortgage. The referee who made the sale acted as an officer of the court, representing all the parties in the action, and not the defendant alone or specially, and he was the only person with whom the purchaser could deal or negotiate for extension of time to complete his purchase and to be relieved from the payment of interest with which he was chargeable under the terms of sale, in case he made default in taking his deed at the time stipulated and specified for its delivery, and he alone, and not the defendant, could demand the interest. In short, the defendant was not in a condition to apply, as vendor of the premises, to a court of equity to compel a specific performance of the plaintiff’s purchase or to invoke the equitable rule referred to. The referee, after considering the case as one to be decided with reference to the equitable rule as above stated, further decides, “that the payment of the interest on the whole amount of the purchase-money was not discretionary or voluntary on the part of the plaintiff, but in strict compliance *453 with the said memorandum, of sale, by reason of the referee not having deemed it proper to extend the time for the completion of said purchase.” In this I concur; and it appears to follow that, so viewing the payment of interest, it must be considered as a part of the price agreed to be paid for the land, and entirely irrespective and independent of the possession by the owner of the equity of redemption, and his rights to the rents or his obligation (assuming him to be vendor) to pay the plaintiff such rents as an equivalent or compensation for the interest. It is further decided by the referee, and so the counsel of the appellant also claims, that by the payment of the money and the acceptance of the deed on the 2d day of August, 1865, the deed related back and took effect so as to vest a legal title to the said premises in the plaintiff as of the first day of November, 1864, subject to all liens and incumbrances thereon for taxes, assessments and other incumbrances accrued after that date,” and he adds, and “ that thereupon the plaintiff became entitled to the rents of the 'said premises for the period intervening between November 1, 1864, and August 2,1865.” I dissent from this doctrine, and deny that a legal title can become vested under a deed before its delivery, under any circumstances. If) however, it be conceded that a doctrine giving a deed such retrospective effect could properly be invoked in any case it could only be when the purchaser was entitled thereto at an earlier date, and it had been unjustly and improperly withheld, without any fault or neglect on his part. The facts in this case show that the plaintiff himself was in fault; the whole time which elapsed, between the day fixed for the delivery of the deed and the time it was delivered, resulted from his failure to pay the purchase-money, and, consequently, he had no right thereto previous to such payment. Under such circumstances the rule cannot apply. It follows, from what has been said, that the General Term properly reversed the judgment entered on the referee’s deci *454 sion, and that the order granting a new trial should be affirmed, with costs, and judgment must be entered against the appellant under his stipulation, with costs. All concur. Order affirmed and judgment accordingly.