5 N.Y.S. 934 | N.Y. Sup. Ct. | 1889
By deed executed October 24, 1854, the plaintiff’s testator, John Garcia, conveyed in fee-simple the premises in question, a dwelling-house on Twentieth street, between Fifth and Sixth avenues, in the city of New York, to Jane J. Callender, the mother of this defendant. The deed contained the following covenant: “And the said party of the second part,
It may not be at all necessary to add anything to the opinion of the learned judge who tried the case in the court below, but, in view of the fact that attention has been called upon this appeal to certain definitions of the word “pre-emption,” which were evidently not before the court at the trial of the case, it may be proper to add a word or two to that which was so well said in the opinion rendered upon the trial. In the construction of the words of a contract the intention of the parties is to be ascertained, if possible, and such intention is to control.' It is clear that in this contract the use of the word “pre-emption” has no relation to the definition given of it by Blackstone, relating, as the word there does, entirely to the prerogative of purveyance, or the right upon the part of the king’s purveyors of buying up provisions and other necessaries for the king’s household. In international law the word had another definition, where it meant the right of a nation to detain the merchandise of strangers passing through its territories or seas, in order to afford, to its own subjects a preference of purchase. It is certain that this right was not referred to in the deed in question. By the laws of the United States the right given to settlers on public lands to purchase them in preference to others is called the pre-emption right. And as this definition more clearly refers to a subject-matter similar to that which the parties to this contract had under consideration, it must have been some similar right which was intended to be preserved. It would seem to be clear that some other right than the mere right of repurchase at a given price was in mind, or that term, much more common, would have been used; and it therefore seems that the term in question was employed for the purpose of giving to the grantee a preference in the purchase over any other person, when the grantee desired to dispose of the property in question. In all the cases cited by the appellant’s counsel there was a clear covenant to reconvey, and although the phrase “right of pre-emption” may have been used, yet in the case itself was defined what the parties intended by the use of that term; as in the case of Randall v. Sanders, reported in 23 Hun, 611, and affirmed 87 N. Y. 578. But in no case has it been held that the mere giving of a right of pre-emption, without a covenant to convey at "any time, gives a right to compel a conveyance against the wish of the grantee. It may be true that this construction does not give the broadest effect to the words “at any time,” as is claimed by the appellant; but full effect may be given to those words by holding that at any time that the grantee desires to sell the grantor shall have the pre-emptive right to purchase. We think that this was what was intended by the parties to the in