Turner v. Walker — 70 A.D. 306

Majority

p. 306

Charles H. Turner, Respondent, v. Thomas S. Walker, Appellant.

Headnote

Venue—of an action by a vendm' to compel a vendee to specifically perform a contract to buy land.

An action brought to compel the vendee in a land contract to accept the title' tendered by the vendor and to pay the contract price therefor, is an action . brought “to procuren judgment establishing, determining, defining,-forfeiting-, annulling, or otherwise affecting an estate, right, title, lien or other interest in real property,” within the meaning of section 982 of the Code of Civil Procedure, which provides that such an action shall he brought.in the county where the land is situated.

Appeal by the defendant, Thomas S. Walker, from an order of the Supreme Court, made at the Montgoméry Special Term and entered in the office of the clerk of the county of Franklin on the 8th day of July, 1901, denying the defendant’s motion to change the place of trial of the action from the county of Franklin to the county of Hamilton.

The complaint avers that a written contract for the sale and purchase of land in Hamilton county, describing it, was entered into between the parties at the agreed price of ten dollars ($10) per acre, the total amount of the purchase to be ascertained by a survey -of the land and a determination thereby of the number of acres covered by the contract; that such survey was made, the number of acres found to be 2,481 and 72-100, and the whole amount of the.

p. 307

purchase price thereby fixed at twenty-four thousand eight hundred and seventeen dollars and twenty cents ($21,817.20); that the plaintiff executed a good and sufficient deed of this land and tendered the same to the defendant; that defendant refused to accept it and refused to pay the purchase price. The complaint, thereupon, prays for a'judgment requiring the defendant to perform the agreement, and pay the purchase price to the plaintiff.

The answer denies, among other things, the making of the contract, and sets up various other matters by way of defense. With the answer the defendant served a demand that the place of trial be changed from Franklin to Hamilton county. This demand being disregarded, the defendant moved upon the pleadings and upon an affidavit showing service of the demand for an order changing the place of trial to Hamilton county upon the ground that the action related to lands situate in that county and is, therefore, local in character. The motion was denied at Special Term, and from the order denying it this appeal is taken.

A. Walker Otis, for the appellant.

Frederick G. Paddock, for the respondent.

Section 982 of the Code of Civil Procedure provides that certain actions “must be tried in the county in which the subject of the action, or some part thereof, is situated.” Enumerated among these are actions “to procure a judgment establishing, determining, defining, forfeiting, annulling, or otherwise affecting an estate, right, title, lien, or other interest in real property.” The scope and object of this action is to compel the defendant to accept a deed of land and to pay the alleged agreed price therefor. It is not an action for damages for a breach of contract, but to enforce performance of a contract relating to lands, to compel the acceptance of a title to lands. It is in no sense an action for damages. It is simply an action to compel a specific performance of a contract relating to the sale and transfer of title to real property. If the action had been brought by the defendant against the plaintiff to compel the execution and délivery of a deed there can, of course, be no doubt that the action would be local, because section 982

p. 308

expressly declares that such an action must be brought in the county where the subject-matter of the action is situated. ' In what way does such an action differ from one to compel the acceptance of a deed? We think-the subsequent clause of the section above quoted was intended to embrace actions of this character, and, indeed, all actions affecting the transfer of title to real property not therein before enumerated.

The action, as above indicated, is not alone to recover the purchase price, certainly not to recover damages for a breach of con-' tract, but to compel the defendant to take title to the land described in the complaint, as well as to pay the purchase price therefor.

We think, therefore, that the action is governed by section 982 and must be tried in Hamilton county, or according to the provisions of the Code in Fulton county, Fulton and Hamilton counties being regarded as one. (Code, § 232.)

’ The order must be reversed, with ten dollars costs and disbursements, and the motion granted.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to appellant to abide event.