Adams v. Green , 34 Barb. 176 ( 1861 )

E. Darwin Smith. J.

In the case of Moore v. Burrows ^(a) we were prepared at the last December term to decide that as between the executor and heir of a vendor, a con-, tract for the sale of lands was personal estate, and went to the executor and not to the heir. Before the decision was announced this case came on for argument, and as my brother Johnson was not satisfied with the proposed decision of that case we allowed the argument in this to proceed as though the question were an open one, and retained that case, with this, under advisement for further consideration. In looking into the case anew and reviewing the aúthorities, I am unable to come to any other conclusion upon the question than that which is expressed in the opinion in that case. The legislature of this state have impliedly if not expressly asserted the rule to be as stated in Moore v. Burrows, in section 99, art. 7, chap. 1st of part 3d of the revised statutes, (3 R. S. 275, 5th ed.) which is as follows“The supreme court or a county court shall have power to decree and compel a specific performance by any infant heir or other person of any bargain, contract or agreement, made by any party who may die before the performance thereof, on petition of the executors or administrators of the estate of the deceased, or of any person or persons interested in such bargain, contract or agreement, and on hearing all parties concerned and being satisfied that the specific performance of such bargain, contract or agrees ment ought to be decreed or compelled.” This provision im-r pliedly assumes that the purchase money is personal estate, and goes to the executor or administrator. It is in effect a provision whereby they may, upon the payment to them of the purchase money, execute the contract of the vendor by procuring a conveyance from his heirs to the vendee. The question was expressly decided in the case of Farrier, v. The Earl of Winterton, by Lord Langdale, master of the rolls, reported in 6 Jurist of 1842, p. 204. The question was whether the devisee of the land contracted to be sold by the testatrix in her lifetime, or the personal representatives, were entitled to the purchase money remaining unpaid on a contract for the sale of the land. It was held that the devisee had no interest in the purchase money, but that the money in question belonged to the personal representatives. (See also 2 Story’s Eq. § 790; Hill v. Ressegieu, 17 Barb, 166; Lewis v. Smith, 5 Selden, 502; Roberts v. Merchants, 1 Hare, 547; S. C. 23 Eng. Ch. 547.) In the last mentioned case the administrator of a vendor who had died intestate filed his bill against the purchaser, for a specific performance of a contract for the sale of land. It was objected that the heir was a necessary party to the suit. It was held that the objection was a valid one, and that the purchaser in such a case, when sued for a specific performance of his contract, is entitled to have the question of the validity of the contract decided in the presence of the vendor, or if the vendor be dead, in the presence of the party who represents him. In this case the action is brought without making the executor a party. Calvert, on Parties in Equity, (p. 293,) says that “when a.vendor dies after having entered into an agreement to sell, and makes a devise of all his real estate, both the real and personal representatives are necessary parties, the former that they may convey the property contracted for, and the latter that they may give a discharge for the purchase money.” It follows from these authorities that the demurrer in this case is well taken, on the ground that the executor is a necessary party to the suit. Judgment should therefore be given for the defendant, on the demurrer, with leave to the plaintiff to amend by adding the proper parties, on payment of costs.

Knox, J. concurred.

(a) Ante, page 173.