Moyer vs. Hinman, 17 Barb. 137

By the Court, W. F. Allen,. J. At the time of the recovery of the judgment and the sale by the sheriff, the legal title to the premises was in Schroeppel, the judgment debtor.; and the contract of purchase by the plaintiff is to be regarded as a simple executory agreement and as not attaching to the property in any manner, as an incident, or as a present or future charge. No legal interest vested in the plaintiff in virtue of his contract; which could be sold or in any way reached by process of law. (Story’s Eq. Jur. § 790. Bogart v. Perry, 1 John. Ch. Rep. 52; S. C. in error, 17 John. 351.) Spencer, Oh.

J., says, “ The idea thrown out on the argument, that the estate did vest in Birdsall and afterwards in Smith (those claiming under the contract of purchase) as far as the consideration money paid, and that it remained in Atkinson (the vendor) in regard to that part of it which was unpaid; is a novelty in the law, without any authority or reason for its support.” A judgment is not a lien upon the interest of a person holding a contract for the purchase of lands. (2 R.

S. 4th ed. 153, § 4.) But in equity the contract is treated, for most purposes, as if specifically executed; and the vendee is treated as the equitable owner of the land, and the vendor as the equitable owner of the purchase money. A qualified trust is created: the seller is deemed to stand seised of the lands for the benefit of the purchaser, and from this, certain equitable results follow; amohgst other things protecting the purchaser against the claims of thé heir of the seller and every one claiming under him as a purchaser with notice of the contract. (Adams Eq. 140. Story’s Eq.

Jur. §§ 788 to 790.) Any person acquiring the legal title with notice of the contract takes it subject to all the equities which affected the lands in the hands of the vendor. A judgment regularly docketed against the vendor is a charge .upon the land, and binds the legal title, but equity limits and restricts this lien to the amount of the unpaid purchase mdney, aS against a party holding under a contract of purchase. (Keirsted v. Avery, 4 Paige, 15. Ten Eick v. Simpson, 1 Sandf. Ch. Rep. 244. Per Ch., Parks v. Jackson, 11 Wend. 442. Gouverneur v. Lynch, 2 Paige, 300. 2 R.

S. 4th ed. 606, § 4.) The legal lien of the judgment is perfect, but in equity the purchaser may insist upon the same equitable rights, as against the purchaser under the judgment, which he could have urged against his vendor, that is, a conveyance of the premises, upon payment of the purchase money unpaid at the time of the docketing of the judgment.

This is the extent to which equity will interfere with the legal title of the purchaser under a judgment and execution sale, who by his purchase acquires all the title which the judgment debtor had at the time of the docketing of the judgment, and which in this case was the absolute title, subject to the equitable right of the plaintiff to a conveyance, upon the payment of the amount then unpaid upon his contract. The claim of the plaintiff is to be relieved against a legal right, upon equitable considerations.

The equities of the plaintiff which are recognized by the courts grow out of his status at the time the legal title of the defendant attached to the premises, but in this action he seeks to establish an equity by reason of subsequent payments, which if allowed would not only Subject the legal title to equities then existing, but also to such as might at any time thereafter accrue.

His real equity consists in having parted with his money upon the faith of his contract and before an adverse legal title had accrued, or legal lien attached, and not in having1 parted with his money subsequently, without making an effort to discover the then state of the legal title and the rights of parties. So far as the cases go, they all hold that a grantee, mortgagee, or judgment creditor of the vendor of premises acquires a title or lien upon the land, to the extent of the unpaid purchase money. (Gouverneur v. Lynch, 2 Paige, 300. Ells v. Tousley, 1 Id. 280. Ten Eick v. Simpson, 1 Sandf. Ch. Rep. 244.

Tarbell v. Reid, 16 Serg. & R. 267. Hampson v. Edelin, 2 Har. & J. 64.) And some go further, and hold that the legal title overreaches the contract title. (Butts v. Chinn, 4 J. J. Marsh. 641.) Notice of the claim was not, I think, necessary to protect the legal title and claim of the defendant. The cases relied upon by the counsel for the appellant do not seem to be analogous, or to decide any principle by which this case could be affected.- An assignment of a chose in action is only perfected by notice to the party to be affected, for very obvious reasons, which are not applicable to this case. (Story’s Eq.

Jur. § 1047. Towson v. Ramsbottom, 2 Keen, 35.) Stuyvesant v. Hone, (1 Sandf. Ch. Rep. 419,) was a question under the recording acts, and Truscott v. King, (6 Barb. 346,) was a contest between two parties, both claiming under legal titles. If no notice of the judgment or sheriff’s sale to the plaintiff was necessary then the payment to Schroeppel in October, 1845, was properly disallowed, and the tender being insufficient, the plaintiff was properly charged with the costs of the action.

There has been no error prejudicial to the plaintiff, and the judgment must be affirmed, with costs. [Onondaga General Term, October 3, 1853. Gridley, W. F. Allen, Hubbard and Pratt, Justices.]