1 Barb. 635 | N.Y. Sup. Ct. | 1847
If the contract is to be understood as calling for any thing more than a leasehold interest of the premises agreed to be conveyed by the plaintiff, then it is quite clear that he did not possess such a title or interest as he agreed to convey; for, the title to these lands is inalienable in the people, by the fundamental law of the state. [Const, art. 7, § 10.)
II. It is further argued, that by virtue of the provisions of the act of 1829, (1 R. S. 346,) by the diversion of a part of the lots in question to the uses of a dwelling house, barn, shed, &c., and from the business of the manufacture of salt, the same had become forfeited to the people, and therefore the plaintiff had no interest in the premises, capable of being conveyed.
To this, I would answer, (1.) That this very question was submitted to Chief Justice Beardsley, in 1838, then being attorney general of the state. And his opinion is expressed in a communication made to the senate, (Senate Doc. vol 2, No. 60,) that such diversion and use of a part of a salt lot did not work a forfeiture of the lease. I perceive no reason to question the
III. A more plausible objection to the relief sought by the bill in this cause, arises under the provisions of the act of 1838. (Laws of1838, p. 289.) By the third section of that act it is enacted, that “ Hereafter, any underletting, diversion or use, for any other purpose than the manufacture of salt, of any of the lots that have been or may be leased by the superintendent of the Onondaga salt springs, to any person or corporation, for said manufacture, shall work a forfeiture of the leasehold estate, and absolutely divest the lessee, or tenant, of all his interest therein.” Now the argument arising under this provision, against the claim of the plaintiff to have this agreement performed, is this;
For these reasons the decree appealed from must be affirmed, with costs.
See also 1 R. S. 353,5 1, (3d ed. p. 284.)