#### FRANCES H. McCOTTER, Respondent, *v.*ANDREW LAWRENCE, Executor, etc., of ABRAHAM R. LAWRENCE, THE NEW YORK LIFE INSURANCE AND TRUST COMPANY and ABRAHAM R. L. NORTON and CECILIA A. NORTON, Impleaded, etc., Appellants.

*Specific performance of contn'act to convey land—who are necessany pm'ties to action*for—Gode, § 97 — *Statute of limitations.*

All who are interested in a contract for the conveyance of land, must join with the plaintiff in an action brought for its enforcement, or a valid excuse for their not joining with the plaintiff must be shown.

Such defect is not remedied by a judgment directing a conveyance to ho made to the plfl&tiff and her co-owners and their assigns, without naming them, as such co-owners have a right to elect to accept a specific performance, or to sue for damages for a breach of contract. Such an action is within section 97 of the Code.

In an action in *equity*by a vendee in an executory contract for the sale of lands, no proof of a demand or tender of performance, on his part, before instituting suit for a specific performance is necessary, but an offer to perform, made in the complaint, and ability to perform at the time of the decree, are sufficient; and the statute of limitations begins to run without any formal denial by the vendor of the right of the vendee.

Parol admissions and acts *in pais*are no longer sufficient to prevent the operation of the statute of limitations.

It is only when the vendee has become entitled to a specific performance of the contract by the vendor, by reason of a full performance thereof by the vendee, that the vendor will not be allowed to disturb his possession, or to interpose the statute of limitations as an obstacle to his right to have his equitable title perfected by a conveyance of the legal estate.

A court of equity has no more power to disregard the statute of limitations than a court of law.

Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

The action was brought by the plaintiff, as assignee through various mesne assignments of Alexander McCotter, to compel performance of a contract between him and Abraham R. Lawrence, deceased, dated January 22, 1853, for the sale to McCotter of forty-five acres of land, situated at Newtown, Long Island, for the price of $20,250, payable, $5,000 on June 1, 1853, $5,000 on September 1, 1853, and $10,250 in a bond and mortgage of three years.

*108The contract recited the intention of McCotter to divide the forty-five acres into small lots, and Lawrence agreed, at the expense of McCotter, to give separate deeds for the particular lots. Abraham R. Lawrence died on August 3, 1863. The defendants were his executor, heirs at law, legatees and devisees. By the arrangements for the settlement of his estate, all the interest of Lawrence vested in the defendants Abraham R. L. Norton and Cecilia A. Norton, and in the New York Life Insurance and Trust Company, as trustee for them; and they, with the executor, alone appeal.

The complaint alleged the contract; the assignment of a half interest from McCotter to John H. Cornell and Frederick Pentz; the conveyance by Lawrence of 103 of the lots; the payment, prior to the times fixed in the contract, of $17,000 (on the trial this allegation was amended so as to state the true amount paid, $19,000, leaving only $1,250 of the price due); that McCotter had entered into and retained possession; that Lawrence, from time to time, down to 1861, had executed, conveyances, acquiescing in the postponement of the balance due, and that, after his death, McCotter had applied to the defendant Andrew Lawrence, as executor, for a deed, offering to pay the balance due, with interest; that the executor had put him off on various pretexts, and that, in the end, it had been necessary to sue.

Abraham R. L. Norton and Cecilia A. Norton were infants at the commencement of the action, and they interposed answers; the defendants Andrew Lawrence, as executor, and the Trust Company, also answered, and the several answers substantially put the plaintiff to proof of all allegations of her complaint.

*J. S. Lawrence, B. J. Blankman*and *B.*Robinson, for the appellants.

*John E. Parsons,*for the respondent.

Gilbert, J.:

Setting aside many considerations which might influence our discretion in granting or refusing a decree in this case, if the plaintiff were otherwise entitled to a specific performance of the *109contract, we are of opinion that the judgment appealed from cannot be sustained upon any ground, legal or equitable.

The legal title to the lands in controversy is unquestionably vested in the New York Life Insurance and Trust Company. The plaintiff proved nothing more at the utmost, than an equitable title to an undivided moiety thereof; and yet, on that proof alone, she has obtained a judgment, which, if affirmed and executed, would divest the Trust Company of its whole estate in the lands. This bare statement of the result of the trial, I am sure, is sufficient to demonstrate that the judgment is erroneous.

Those in whom the equitable title to the other moiety is vested, were necessary parties plaintiff. A decree cannot, with any show of justice to the defendants, be made without their presence. The law will not tolerate a suit to enforce a contract by piece-meal. All who are interested in having a contract performed must join in a suit therefor, or a valid excuse for their not joining with the plaintiff must be shown. The statute on this subject is imperative, and is merely declaratory of a very ancient rule.* This proposition seems to be incontestable, and, in a case like this, ought to be rigorously enforced, because it is manifest 'that the court cannot determine the controversy before it, without prejudice to the "rights of the defendants, as well as those of the absent plaintiffs, if, indeed, any of the parties have any rights under the contract. The attempt made by the referee to obviate the objection arising from the defect of parties, by directing a conveyance to be made to the plaintiff and her co-owners, and their assigns,- without naming them, cannot be sanctioned. If such co-owners retain their interest under the contract, they have a right to elect whether they will accept a specific performance, or sue for damages for a breach'of the contract. The plaintiff cannot make that election for them. They could not, it is true, sue alone; yet, if an action at law for such damages should be brought by all the parties interested in the contract, the judgment in this suit would not be a bar thereto. That judgment, therefore, affords no protection to the representatives of the vendor against the exercise of that right. Nor would the conveyance ordered be equivalent to a performance of the contract as to such co-owners, even if we might assume that they preferred *110land to money; for the reason that the judgment does not establish their rights. Another adjudication would be necessary to ascertain who were intended as grantees, or the persons answering to the description of them contained in the conveyance, and to determine their respective interests. Furthermore, the Trust Company has a clear right to remain vested with its legal title, until a paramount claim on the part of such co-owners shall have been successfully asserted by them.

We think, moreover that the right of action upon the contract has been barred by the statute of limitations. The case is within section 97 of the Code, which provides that the suit must be commenced within ten years after the cause of action accrued. It has been settled by a series of decisions, that the cause of action in. equity of a vendee in an executory contract for the sale of lands, accrues whenever he becomes entitled to sue for a specific performance of the contract. No demand, or tender of performance on his part, is necessary before instituting such a suit, but an offer to perform, made in the complaint, and ability to perform at the time of the decree, are all that are requisite.* And the statute begins to run without any formal' denial on the part of the vendor of the right of the vendee. In *Peters*v. Delaplaine,† there was no denial of the vendee’s right, but there was only a failure to perform by the vendor, because his wife refused to sign the deed to be given by him. Upon the principle stated, the cause of action upon this contract accrued in January, 1856 ; and the suit was not commenced until October, 1870. We are unable to perceive why, if the plaintiff has any cause of action now, she, or those under whom she claims, had not the same cause of action, at any and all times between January, 1856, and January, 1866. Although neither of the parties to the contract chose to exercise the rights given by it, that fact did .not postpone the accruing of the cause of action.‡ Nor did the demand for a conveyance, made after the death of the vendor, avoid the bar of the statute, or create a new cause of aetion.§

The referee has not found that the time for the performance of the contract by the vendor was extended, nor is there any evidence that it was extended. The declaration made to Mr. McMahon by *111the vendor, that the vendee “need not trouble himself about anything he owes me,” etc., did not have that effect, independently of the objection that it was not in writing, which will be noticed hereafter. At the utmost, it ivas a mere postponement of the exercise óf the vendor’s present right to enforce the contract against the vendee, but it did not take away or affect any' right which the vendee had against the vendor. The referee strained the evidence, when he called it an agreement that the balance due on the contract might remain pending the appeal. But if it was an agreement, it was *nudum, pact/u/m.*

The referee denied the appellants’ motion to dismiss the complaint, made upon the ground that the suit was barred by the statute of limitations, but did not state any reason therefor; nor did he find any of the facts upon that subject. He evidently placed his decision, that the suit had not been barred, upon the supposed agreement made through McMahon, before mentioned, and upon the following facts reported in the findings, namely: That shortly after the contract, the vendee entered into possession of the premises in controversy, and continued to be in possession thereof^ and to exercise ownership over the same, down to the commencement of this suit; and that he paid taxes thereon, and expended considerable sums of money in opening and grading streets, and other improvements; that the vendor died August 3, 1863, and down to his death no proceedings were taken by him, so far as appeared, either to require payment of the balance due upon the contract, or to divest .any rights under it; and that he had, as late as on or about April 16, 1861, and from time to time down to that date, continued to execute conveyances of parts of said premises, at the instance of the vendee.

Parol admissions and acts *in pais*are no longer sufficient to prevent the operation of the statute of limitations. For, by section 110 of the Code it is provided, that no acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of its operation, unless the same be contained in some writing signed by the party to be charged thereby. The only writing signed by the vendor within ten years before the commencement of this action, is a deed, dated April 16, 1861, to one Herring. But that has no legal significance here as a *112written acknowledgment, because it was made merely to effect an exchange of lots, which the vendor had conveyed in 1853, for the lots described in the deed. It was not, in any sense, a transaction based on the continued obligation of the contract, but a substitute for an old one, done while the contract by its terms was in force. Nor is the case materially affected by the question of the possession of the lots which have not been conveyed. It is only where the vendee has become entitled to a specific performance of the contract by the vendor, by reason of a full performance thereof by the vendee, that the vendor will not be allowed to disturb his possession, or to interpose the statute of limitations as an obstacle to his right to have his equitable title perfected by a conveyance of the legal estate.* In such a case the decree enforces a trust rather than a contract. The court would afford the same relief if there were no formal contract. It may not be amiss to remark, however, that, in our opinion, the fact that possession was taken by the vendee under the contract, was not sufficiently proved. Possession was not provided for in thq contract. The consent of the vendor, therefore, was necessary to effect any valid change of possession. The only witness on the subject was the vendee, and he was not a competent witness to prove such consent. †

The provision of the Code, requiring a written acknowledgment to take a case out of the statute of limitations, has effectually destroyed the old doctrine on which courts of equity relieved vendees from forfeitures incurred in consequence of their failure to perform executory contracts for the sale of lands. That doctrine rested on the principle, that time was not of the essence of the contract. But now the statute has interposed an absolute bar after the lapse of ten years. It would be a violation of this statute, to give to the acts of the vendor - referred to, such an effect as would suspend its operation. The statute itself provides, that the time during which certain specified disabilities may continue shall not be computed; but none of those acts are included among them. Courts of equity have no more power to .dispense with a statute than courts of law. ‡ When they have apparently done so, it has been upon the idea that the facts of the particular case took it out of *113the statute.* Contracts which could not be enforced at law, because they were not made conformably to the statute of frauds, have been rendered effective by courts of equity on that ground, and, by our statute of frauds, the right to do this is expressly reserved to those Courts by the proviso, that nothing therein contained shall be construed to abridge their powers to compel the specific performance of agreements in cases of part performance thereof. † It must be presumed, that if the legislature had intended to authorize a like exception in the statute of limitations, they would have inserted in it a similar proviso. However that may be, I know of no principle that would justify the court in refusing to execute a statute in a case clearly within its provisions. We must, therefore, hold the law to be, that with the exception of cases where the contract has been fully performed on the part of the vendee, or there has been a waiver by the vendor of the benefit conferred by the statute of limitations, neither part performance, nor any other considerations which have heretofore actuated courts of equity in decreeing the specific performance of contracts, notwithstanding the lapse of time, can be allowed as an answer to the peremptory bar created by section 97 of the Code, without the written evidence required by section 110 of the Code. For the part performance in this case, the vendee received an equivalent in the lifetime of the vendor, by a conveyance of nearly two-thirds of the property agreed to be conveyed, upon making payments amounting in the aggregate to no more than a proportionate part of the price. The referee, we think, erred in respect to the payments, by giving the vendee credit for property which, although originally taken by the vendor in payment, was returned to the vendee and retained by him. Making allowance for this and for interest, the price of the Land conveyed and the amount of the payments would be very nearly equal. The last payment on the contract appears to have been made in 1853, ten years before the death of the vendor. No suit having been instituted to obtain a * conveyance of the remainder of the lots during a period of nearly fifteen years after the cause of action accrued, and of seven years after the death of the vendor, we think it would be inequitable to undo the bar of the *114statute, even if we had the power to do so, especially as rights of devisees and of strangers have intervened.

We have considered several minor questions presented on the argument, but enough has been said to dispose of the ease without discussing them.

The judgment must be reversed and the complaint dismissed, with costs.

Present — Barnard, P. J., Gilbert and Tappen, JJ.

Judgment reversed and complaint dismissed, with costs.

*

 Code, § 119.

*

 Bruce v. Tilson, 25 N. Y., 194; Peters v. Delaplaine, 49 id., 362.

†

*Supra.*

‡

**Roberts v. Sykes, 30 Barb., 177.

§

25 N. Y., 196.

*

 Miller v Bear, 3 Paige, 466; Bruce v. Tilson, *supra.*

†

 Code, § 399.

‡

**Story Eq. PL, §§ 75, 831.

*

 Wetmore v. White, 2 Cal. Ca., 109; Rhodes v. Rhodes, 3 Sandf. Ch., 279.

†

 2 R. S., 135, § 10.