2 Abb. N. Cas. 56 | The Superior Court of New York City | 1876
By articles of agreement dated November 1, 1876, the plaintiffs, executors, agreed to sell to the defendant, for $120,000, a house and lot of land in the city of New York; and, upon receipt of the purchase-money, at the time, and in the manner mentioned in the contract, to execute and deliver to defendant, or to his assigns “a proper executor’s deed for the conveying or assuring to him, or them, the fee simple of the said premises, free from all incumbrance, except, as above-mentioned, and those contained in deed to J".” [naming the testator]. The lot in question forms part of a tract conveyed, in one parcel, by two persons, by deed, dated May 15, 1849, and by their grantee and wife, conveyed, as one parcel, to the testator, by deed dated February 9, 1854.
The deed of February 9, 1854, to J. [the testator], conveyed the same premises, “ subject to a certain covenant and condition contained in the above-mentioned deed” of 1849, “against the erection of buildings on, and the permission or suffering, on said premises, or any part thereof, any building, or trade, or business therein specified.” It also contained a clause whereby the testator entered into the like covenant with.his grantor, “as one of the terms and conditions upon which” the conveyance ,to him was made, that neither he nor his heirs, nor his assigns, should erect or build, or suffer, or permit any of the obnoxious structures or trades thus enumerated.
. On the day fixed for the completion of the purchase, the plaintiffs tendered to the defendant a deed, duly executed, conveying the premises in question, subject to the aforesaid covenant and condition contained in the deed of 1849, and subject also to the further condition above-mentioned, contained in the deed to the testator. The defendant refused to accept such deed on the sole ground that it contained the restrictive clauses above set forth. The present action was thereupon brought for a specific performance by the vendee, of his contract of purchase.
Upon this state of facts the defendant insists that by the terms of the contract, he is entitled to have conveyed to him a good and indefeasible estate in fee simple; that by reason of the condition thereto annexed, the estate held by the testator was not of this character ; that such estate was and is defeasible upon breach of such conditions,—that the words of the contract, “free from all incumbrance except .....those contained in deed to” the testator, are not to be construed as comprehending or relating to the condition ; that the term incumbrance, as applied to an estate in land, has a technical and restricted signification, and is inapplicable to a condition subsequent, upon breach whereof the estate may terminate ; and, finally, that even if the restrictive clauses contained in the deed to the testator, are to be deemed incumbrances, within the meaning of the contract, the statements and representations made by the plaintiff, at the time when the contract was prepared and executed, were such as to destroy its
It must be conceded that the express terms of the contract certainly entitled the defendant to an estate in fee simple, without any condition, which can alter, impair, determine or divest it, unless Ms right to such an estate is qualified by the exceptional clause of the contract in reference to incumbrances contained in the deed to the testator.
A contract to “sell” land can only be performed by giving a conveyance that will vest in the grantee an unincumbered and indefeasible estate (Burwell v. Jackson, 9 N. Y. 535; Delavan v. Duncan, 49 N. Y. 485). Here, there is not oMy a contract to sell, but to execute a proper deed for the conveying and assuring to the grantee the fee simple - of the premises sold. If, then, the estate of the testator was not .an indefeasible and unincumbered estate in fee simple, the purchaser is absolved from all obligation to accept the title offered him, unless the objections thereto are obviated by the exceptional clause, which refers to incumbrances contained in the testator’s deed. The defendant is not understood as objecting to the title on the ground of restrictions upon the use of the.premises in question, in so far as such restrictions rest merely in covenant, but confines his objection to the uncertain tenure, of the title as depending upon the condition that the covenants are observed. His defense is that “the title of the testator, and of the said plaintiffs, was and is subject to conditions subsequent, the breach of which would defeat the estate of the plaintiffs, and any title which plaintiffs might convey” to him. We have, therefore, to consider, in the first place, whether the conveyances to the testator and his grantor, respectively, were such as to vest in them an absolute and unconditional estate, in fee simple, or
It is contended on the part of the plaintiffs, that the restrictions in question rest merely in covenant, and that they are to be construed as not constituting a grant upon condition, or as a reservation of a possibility of reverter; that the words “as one of the terms and conditions upon which this conveyance is made” —relate to the insertion of the covenant in the deed; that the making of the covenant, and not its performance, constitutes the condition, and that, the covenant having been made, the condition is fulfilled. It is true that the words thus quoted are the words of the grantee, not those of the grantor; that they are not found in proximity to the terms of grant, nor in the habendum clause of the deed; that they appear only in connection with the covenant itself, and that the deed contains no clause of re-entry in case of breach. But, unless they relate to and restrict the grant, they have no significance or effect whatever, and might as well have been wholly omitted. Without them,, the construction of the instrument would have been precisely that which is now insisted upon; and force can only be given to them, by construing them as adding to the remedies which are applicable to a threatened or perpetrated breach of covenant, the forfeiture which is incident to a breach of condition. Had they preceded the covenant, and the instrument had read—“ It is one of the conditions upon which this conveyance is made, and the grantee, for himself, his heirs, &e;,—doth hereby covenant, &c.,”—no one would have pretended that the conveyance, itself, was not made upon the condition that the prohibited structures and pursuits should not be erected, or permitted. I cannot think that so slight a change in the collocation of the words would afford evidence of any different intent, or impart to them a different significance. In Gibert v. Peteler,
We have, therefore, to consider next, whether a condition subsequent grafted upon an estate, at the time of its creation, constitutes an “incumbrance” within the meaning of the exceptional clause of the contract. And I think it clear that the word incumbrance, as there used, particularly as the contract was not drawn by a lawyer, should be deemed to have been employed, according to its common and current use
If, however, we may invoke the aid of the surrounding circumstances, and may consider the facts disclosed by the evidence, viz., that the deed to the testator was produced, and was read by defendant, that the plaintiff refused to contract for a conveyance of anything more than that deed conveyed, and stated that the contract must be drawn in accordance with its provisions; that the restrictions in question were thereupon made the subject of comment and discussion ; and that the agreement was thereafter prepared and executed,—I think it clear that the intent of both the parties was to contract for a conveyance subject to the same restrictions ; imposed in the same, or a substantially similar form. Whether that intent, on the part of defendant, was induced by inaccurate or unfounded representations, is an entirely different question. What I mean to assert is, that the minds of the parties met, and that they gave to the term incumbrance a practical construction, which included the condition in question, since, as matter of fact, they. intended to designate, and did designate, those very restrictions, and none others, when they
It only remains to inquire whether the obligations of the defendant under the contract are discharged, or in any wise impaired, by the statements made to him by the plaintiff, in substance and to the effect, as he understood them, that the restrictions in question were usual, and did not affect the title or value of the property. There is no evidence tending directly or indirectly to show that they were not usual, as respects all other property in the vicinity; or to impugn the sincerity and good faith of the plaintiff, in making them. In asserting that they did not affect the title or value of the property, he probably merely meant that the title and value were, as he may well have believed, not adversely or injuriously affected thereby. Others, more competent than he to understand and appreciate narrow distinctions of phraseology, and to express more accurately the nicer shades of their meaning, perhaps entertain the same opinion. The defendant did not testify, nor is it to be inferred, that he entered into the contract on the faith of these statements and opinions, or believing them to be well founded. If he did, he cannot escape from its obligations, unless they are to be deemed fraudulent. I think that both the defendant and his counsel would revolt from such an imputation. Barlow v. Scott (24 N. Y. 40), is cited as perhaps bearing upon this question ; but that was a clear case of fraud, presenting no analogy to the case at bar.
The plaintiffs are entitled to judgment that the contract be specifically performed.
Let findings be prepared in accordance with these, views, and submitted for signature, on one day’s notice..