75 N.Y.S. 876 | N.Y. App. Div. | 1902
The submission presents the question of the marketable quality of the plaintiff’s title to certain real estate which the defendant has agreed to buy.
The real estate was conveyed on the 31st day of August, 1868, by James Robb and wife for the expressed consideration of $625, to the trustees of school district No. 10 of the town of Greenburgh, Westchester county. The trustees had authority to purchase a site for the district schoolhouse by virtue of subdivision 5 of section 49 of article 6 of title 7 of the “ act to revise and consolidate the general acts relating to public instruction.” (Laws of 1864, chap. 555.) The deed of the property is a full covenant warranty deed conveying the real estate in fee simple to the trustees and their “successors and assigns,” but the habendum clause is as follows: “ To have and to hold the above granted, bargained and described premises, with the appurtenances, unto the said parties of the second part, their successors and assigns, for the uses and purposes of school district No. .10, of the said town of Greenburgh, upon which to erect a school house and other appurtenances for said school district No. 10, in said town of Greenburgh, forever.”
The plaintiff is the present board of education of the union free school in district No. 10, and the title to the property is vested in it, with authority, if authorized by vote of the school district, to sell the real estate and to apply the money arising from such sale to the use and benefit of the district. (See the “ act to revise, amend and consolidate the general acts relating to public instruction,” Laws of 1894, chap. 556, tit. 8, art. 4, § 15, subds. 6-8.) The real estate in question has been used for school purposes since its acquisition. A new school site has recently been acquired upon which a new
The defendant’s brief is not very clear in its expression of the nature of the assumed defect. The claim is made that the deed is either in trust or operates by way of a dedication of the property to a public use, or the clause in question is effective as a covenant or as a condition or qualifies the duration of the estate as a limita-' tion Upon the time of enjoyment. It is unnecessary to refer in detail to the many cases cited. Having examined them, the conclu-: sion is reached that the clause is none of these things, but a mere recital of the purpose for which the trustees bought the property, viz., that, they bought it for the use of the school district so that a school could be built on it and not for themselves. It was not a dedication by the grantors, it was a sale, and as was said by the court in Flack v. Village of Green Island (122 N. Y. 107, 113) “ dedication :is essentially of the nature of a gift.” The deed contains no covenant on the part of the grantees to the effect that they will not use or permit the property to be used for other than school purposes, ñor did they join in the execution of the instrument. There is no provision for a forfeiture and no right of re-entry reserved. There is no restriction suggested upon the right of the grantees to sell the property away from the school district, while the right to malcesuch sale is expressly contemplated by frequent allusions to the “ assigns ” of -the grantees. There is no covenant that the property will not be used for other than school purposes, and no. suggestion that the grantors as owners of adjoining or neighboring property or otherwise have any interest in the exaction of such a restriction. There are no words excluding any other use of the property than that of a school purpose, while the right to convey is essentially in conflict with such exclusion. It is held in Craig v. Wells (11 N. Y. 315) that conditions in grants are not favored in law, and hence-must be clearly expressed. The court said (p. 320): “It .is true that no precise form of words is necessary to create them. (Con-ditions.) The words, upon condition ; provided ; and if ; so that;
If the language contained in the habendum clause in the deed herein must be regarded as a restriction upon the uses to which the property should be put in the hands of the grantee, it would of course not be necessarily repugnant to the grant or void. The parties might lawfully contract for a sale of property under a contract restricting its use by the grantee and his heirs and assigns, so long as such restriction was not in absolute hostility to the estate created. But the question in such eases is always one of intention. Here there are no circumstances disclosed, either in the document itself or in the situation of the parties, indicating an intention to restrict the use of the property by the force of a binding covenant.
The plaintiff should have judgment in accordance with the- terms of the submission, but without costs.
All concurred.
Judgment for plaintiff on. submission of controversy, without costs.