Subsequent to such execution and until an actual conveyance is made, the vendor retains full legal title to the premises. In addition thereto, the law confers upon him a so-called vendor's lien ( Freeson v. Bissell, 63 N.Y. 168; Thomson v. Smith, 63 N.Y. 301; Burkhardt v. Babcock, 42 Hun. 651, opinion sub nom. Burank v. Babcock, in 3 N.Y. St. Rep. 458; Rowley v. Durfey, 230 A.D. 402; Charles v. Scheibel, 128 Misc. 275, affd. 221 A.D. 816; Champion v. Brown, 6 Johns. Ch. 398; Conners v. Winans, 122 Misc. 824; 27 R.C.L., Vendor and Purchaser, § 346, p. 598), which exists in his favor even where possession as well as title is retained by him ( Charles v. Scheibel, supra). In the event of a default by the vendee, the vendor may institute an action for specific performance to compel the vendee to accept the premises and the title thereto and to make payment therefor ( Crary v. Smith, 2 N.Y. 60; Jenkins v. Fahey, 73 N.Y. 355; Woodruff v. Germansky, 233 N.Y. 365; Neponsit Holding Corp. v. Ansorge, 215 A.D. 371; Duke v. Wasserman, 191 Misc. 849), or he may proceed to foreclose the lien and free the property of the contract.
Subsequent to such execution and until an actual conveyance is made, the vendor retains full legal title to the premises. In addition thereto, the law confers upon him a so-called vendor's lien (Freeson v. Bissell, 63 N.Y. 168; Thomson v. Smith, 63 N.Y. 301; Burkhardt v. Babcock, 42 Hun. 651, opinion sub nom.Burank v. Babcock, in 3 N. Y. St. Rep. 458; Rowley v. Durfey, 230 App. Div. 402; Charles v. Scheibel, 128 Misc. 275, affd. 221 App. Div. 816; Champion v. Brown, 6 Johns. Ch. 398; Conners v. Winans, 122 Misc. 824; 27 R. C. L., Vendor and Purchaser, § 346, p. 598), which exists in his favor even where possession as well as title is retained by him (Charles v. Scheibel, supra). In the event of a default by the vendee, the vendor may institute an action for specific performance to compel the vendee to accept the premises and the title thereto and to make payment therefor (Crary v. Smith, 2 N.Y. 60; Jenkins v. Fahey, 73 N.Y. 355; Woodruff v. Germansky, 233 N.Y. 365; Neponsit Holding Corp. v. Ansorge, 215 App. Div. 371; Duke v. Wasserman, 191 Misc. 849), or he may proceed to foreclose the lien and free the property of the contract.
Thus, notwithstanding the words of the contract and implications which may arise therefrom, the law of property declares that, upon the execution of a contract for sale of land, the vendee acquires equitable title ( Elterman v. Hyman, 192 N.Y. 113, 119; Williams v. Haddock, 145 N.Y. 144; Occidental Realty Co. v. Palmer, 117 App. Div. 505, 506, affd 192 N.Y. 588). The vendor holds the legal title in trust for the vendee and has an equitable lien for the payment of the purchase price ( Trembath v. Berner, 240 N.Y. 618; New York Cent. Hudson Riv. R.R. Co. v. Cottle, supra; Charles v. Scheibel, 128 Misc. 275, affd 221 App. Div. 816; 4 Pomeroy, Equity Jurisprudence [5th ed], § 1261; 16 Carmody-Wait 2d, § 98:2, p 503). The vendee in possession, for all practical purposes, is the owner of the property with all the rights of an owner subject only to the terms of the contract.
( Phelan v. Brady, 119 N.Y. 587.) The deed from Collen to Siger was not entirely a nullity however; it conveyed the interest which Collen still had in the land (Real Property Law, § 245) in the form of a vendor's lien ( Charles v. Scheibel, 128 Misc. 275, affd. 221 App. Div. 816) and it was this right to which the mortgagee bank succeeded upon default in the mortgage payments. The bank is entitled to enforce the lien in this action; while it actually has no "mortgage" on the property which it may foreclose against the contract vendor, its rights under the lien may be implemented.
Present — Hubbs, P.J., Clark, Sears, Taylor and Sawyer, JJ. Judgment and order affirmed, with costs, on the opinion of Larkin, J., delivered at Special Term. [Reported in 128 Misc. 275. ] All concur.
Apart from express reservation of a vendor's lien (McKillip v McKillip, 8 Barb 552 [Sup Ct 1850]; Annotation, Deed in Consideration of Support, 64 ALR 1250 [1930]), or where the vendor actually retains title and lets the vendee in possession (Bean v Walker, 95 A.D.2d 70 [4th Dept 1983]; see, Charles v Scheibel, 128 Misc. 275 [Sup Ct, Onondaga County 1926], affd on opn below 221 App. Div. 816 [4th Dept 1927]; General Obligations Law § 5-1311 [purchaser not in possession]), the law implies a vendor's (or grantor's) lien where no security was given for the purchase price. (Franklin Sav. Bank v Ascension Mem. Church, 55 N.Y.S.2d 808, 814 [Sup Ct, N Y County 1945] Unif Land Transactions Act § 2-508 [a], 13 ULA 556; Annotation, Different Classes of Vendor's Liens, 91 ALR 148 [1934].)
The agreement has, in effect, shifted equitable title to the property to Keller and Lippincott, even though legal title still rests in Buckner. ( Elterman v Hyman, 192 N.Y. 113; Williams v Haddock, 145 N.Y. 144; Sloan v Pinafore Homes, 38 A.D.2d 718; Occidental Realty Co. v Palmer, 117 App. Div. 505, affd 192 N.Y. 588; Marine Midland Bank-N.Y. v Batson, 70 Misc.2d 8; Van Curler Dev. Corp. v City of Schenectady, 59 Misc.2d 621; Charles v Scheibel, 128 Misc. 275, affd 221 App. Div. 816.) Since New York law is firmly settled and established that a contract for the sale of property operates as an equitable conversion, the purchaser, in contemplation of equity, becomes the real owner. (See 6 Warren's Weed, New York Real Property, Vendee and Vendor, § 6.01, p 53; 62 N Y Jur, Vendor and Purchaser, § 28, p 236; Cicci v Humphreys, 33 Misc.2d 94; see, also, Holden v Efficient Craftsman Corp., 234 N.Y. 437.) The factual situation present herein upholds this conclusion.
The significant factor of such a lien is that it is enforced by foreclosure and treated in the same manner as a mortgage foreclosure. Cf. Charles v. Scheibel, 128 Misc. 275, 218 N.Y.S. 545 (Sup.Ct.Onon.Co.), affd. 221 App.Div. 816, 222 N.Y.S. 784 (4th Dept.) The import of the above is that such a lien is surrounded by the two safeguards which enlightened equity has placed around foreclosure through the years: the right to a public sale and the right to redeem.
A motion to reopen a case for further proof after having been completed, but before judgment has been rendered, is addressed to the discretion of the court. If the proffered evidence, although cumulative, may materially aid in the presentation and determination of the case, the motion should be granted. In the case of Charles v. Schiebel ( 128 Misc. 275; affd., 221 A.D. 816) plaintiff brought an action to foreclose a vendor's lien, based upon a contract of sale of real property. Pursuant to section 250 Tax of the Tax Law, executory contracts for the sale of real property under which the vendee has or is entitled to possession are deemed to be mortgages and are taxable at the amount unpaid on such contract. If the tax is unpaid, such a contract is not admissible. The court in this case permitted plaintiff, after the close of the evidence, to reopen the trial for the purpose of offering the contract with evidence of the payment of the tax. It was held that the court had the discretionary power and it was its duty to reopen the trial in the interests of justice. In the case of Asserson v. City of New York ( 195 A.D. 12) an action was brought to recover damages for breach of a contract.