#### BENNETT v. GRAY.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

*X.*Ejectment—Evidence—Judgment in Trespass.

The judgment roll in trespass for damages to personal property on certain premises is not admissible in ejectment for the premises by the same plaintiff against defendant’s grantee in trespass who received his deed from such defendant and went into possession of the premises prior to commencement of the action in trespass.

3. Same—Equitable Remedy.

A purchaser under a contract providing that, if he failed to perform any part of it, the vendor should immediately have the right to declare it void and take possession, cannot, without proving that he made payment as stipulated in the contract, maintain ejectment against a subsequent grantee of the vendor, who has taken possession under his deed; but In the absence of such proof his remedy, if any, is in equity.

*373Appeal from circuit court, Delaware county.

Action by Clark S. Bennett against Nelson Gray. From a judgment of nonsuit, and an order denying a motion for new trial, plaintiff appeals.

Affirmed.

The action was to recover possession of certain premises described in the complaint, situated in the town of Delhi, Delaware county. The complaint contained the usual allegation found in actions of ejectment, to wit, “that the defendant is wrongfully in the possession thereof, and wrongfully withholds the same from this plaintiif.” The answer contained a general denial, and an averment that the defendant is in possession and owner of the land and premises described in the complaint. The evidence indicated that the defendant was in possession under a warranty deed of the premises, which he received on the 25th day of November, 1889, executed by Calvin H. Bell to the defendant. When the defendant took the deed from Bell, Bell “said there was nothing against it” (the property). After the defendant received the deed, he went into possession of the premises. At the close of the evidence the trial judge held that there was no proof that the purchase price in the contract under which the plaintiif claimed the premises had been paid, and that, if the plaintiif has any remedy, it is by way of an action in equity to get title. Plaintiif asked to go to the jury upon all the questions in the case. That motion was denied, and an exception was taken. An exception was also taken to the nonsuit granted.

Argued before HABDIN, P. J., and MEBWIN and PABKEB, JJ„

W. & G. W. Youmans, for appellant.

Wagner & Fisher, for respondent.

HARDIN, P. J.

Inasmuch as both parties found their respective positions upon the several transactions they have had with Calvin H. Bell, it was assumed at the trial that on the 31st day of May, 1888, Bell had legal title to the premises described in .the complaint. Prior thereto the plaintiff had entered into a contract on the 21st day of April, 1888, for the purchase of certain premises described in that contract, and in that contract was found the following stipulation:

> “It is mutually agreed between said parties that said party of the second part shall have possession of said premises on this date, and he shall keep the same in as good condition as they are in at the date hereof, until the said sum shall be paid as aforesaid; and if said party of the second part shall fail to perform this contract, or any part of the same, said party of the first part shall, immediately after such failure, have the right to declare the same void, and retain whatever may have been paid on said contract, and all improvements that may have been made on said premises, and may consider and treat the party of the second part as his tenant holding over without permission, and may take immediate possession of the premises, and remove the party of the second part therefrom.”

Subsequent to the execution of that contract, a second contract was entered into, which is in the following language:

> “I, Clark S. Bennett, do hereby consent to and request C. H. Bell to exchange the within-mentioned property with William Smith, Jane M. Zeller, and Elizabeth G. Blowers, for a wood lot of about twelve acres, and a dwelling house and lot of about three acres, as described in a deed from Alfred L. Mason to William Smith, dated October 25, 1883, and a deed from Edward Bell and wife to Mary Ann Smith, now deceased; and I do hereby agree to pay said O. H. Bell the sum of three hundred dollars, with interest from April 21, 1888, for the above-mentioned piece; said Bell to hold the judgment ■which he now has as security for the within contract, with the like force and *374effect until the above-mentioned pieces are paid for; and said Bell is not to assume or be held to any responsibility on account of the title to the above-mentioned pieces. Witness my hand and seal this 81st day of May, 1888.

> “Clark S. Bennett. [L. S.]”

In November, 1889, Bell took the position that Bennett was in arrears in his payments upon the contract, and instituted summary proceedings to remove Bennett from the premises; and a trial was had before R. A. Frasher, a justice of the peace, who awarded possession to Bell of the premises described, by a judgment rendered on the 20th of November, 1889, and an order was issued removing Bennett from the premises. The proceedings had before the justice were removed to the county court of Delaware county, and that court, by a decision pronounced on the 4th day of November, 1890, reversed the order and judgment made by the justice, and the judgment of reversal was entered on January 21, 1891. On the 26th of November, 1889, Bennett brought an action in the supreme court against Calvin Bell, in trespass, alleging that on or about November 20,1889, Bell, with his agents and servants, wrongfully, unlawfully, and maliciously entered into and upon the lands and premises, and removed the plaintiff’s household property to the highway, greatly injuring and destroying the same, to the damage of the plaintiff. Bell caused an answer to be served, and issue was joined, and the action brought to trial at a circuit, and the plaintiff recovered therein, as damages, |52.58. The judgment was appealed to the general term, and on the 7th of February, 1893, an order was granted in the general term affirming that judgment. 23 N. Y. Supp. 1150. An objection was taken to the reception in evidence of the judgment roll in the action of trespass. It appeared that the action was commenced subsequent to the day when the defendant received his deed from Bell, and subsequent to the time when the defendant went into possession of the premises, and the court rejected the judgment roll as evidence. The defendant here was not a party to that action, and it does not appear that any lis pendens was filed in that action; that it was simply an action in trespass for damages alleged to have been done by Bell to the personal property of Bennett; and we are of the opinion that the trial judge properly excluded it. Hailey v. Ano, 136 N. Y. 569, 32 N. E. 1068. Near the close of the opinion in that case, Andrews, C. J., said: '

> “The theory that parties are presumed, to be cognizant of what is passing in the sovereign courts of justice assumes that by consulting the records of the courts the fact may be ascertained. But we think the pendency of a trespass suit does not prevent a purchase of the land upon which the trespass was committed, pendente lite, or give to a judgment for damages subsequently recovered therein the effect of an adjudication binding the title of such intermediate purchaser, even though he may have known that the action was for a trespass upon the lands purchased.’’

We are of the opinion that no error was committed in refusing to receive in evidence the charge of the circuit judge delivered when the action of trespass was tried. When the defendant entered into possession of the premises under his deed, he did so having acquired the legal title of Bell, the former owner of the property, and that legal title drew after it the right of possession. After a careful *375inspection of the appeal book, we are satisfied there was no evidence given upon the trial now brought in review to establish that the contract price had been paid by Bennett to Bell prior to Bell’s conveyance to the defendant. In the first contract that was made between Bell and the plaintiff, Bennett, it was expressly provided that if Bennett failed to perform the contract, or any part of the same, Bell was entitled to immediately “have the right to declare the same void.” If Bell had resumed possession of the premises on the day when he executed the deed to the defendant, peaceably, the plaintiff would, in order to be entitled to recover possession from Bell, be obliged to establish that the terms of the contract in respect to the purchase of the premises had been kept and carried out. We see no reason why the same burden does not rest upon the plaintiff, when seeking to oust the grantee of Bell, who went into possession after having derived the legal title from him. It was therefore incumbent upon the plaintiff to establish by satisfactory evidence that he had complied with the terms of the contract of purchase, and that in virtue of its stipulations, having made payment of the contract price, he was rightfully entitled to have possession of the premises. In the absence of such proof, we are of the opinion that he was not entitled to maintain an action on the law side of the court for the recovery of the possession of the premises, and that no error was committed by the trial judge in granting a nonsuit, or in denying the motion for a new trial. In Peck v. Newton, 46 Barb. 173, it was held that “where the plaintiff has, at most, a mere equitable title to the piece of land, the possession of which he seeks to recover^ no action will lie.” Near the close of the opinion in that case, Parker, J., said, “Plaintiff had not proved a cause of action entitling him to a recovery against the defendant, and should have sought relief in an equitable action against all the parties obligated to grant him his equitable rights.” The same doctrine is stated in Moore v, Spellman, 5 Denio, 225, and is again alluded to and stated in Townshend v. Frommer (Super. N. Y.) 5 N. Y. Supp. 442. In Wright v. Douglass, 3 Barb. 556, it was held, “Ejectment cannot be maintained unless the plaintiff has the legal estate in the premises.” We are of the opinion that the nonsuit was properly granted.

Judgment and order affirmed, with costs. All concur.