46 N.Y.S. 1058 | N.Y. App. Div. | 1897
Lead Opinion
The precise question for determination, broadly stated, is whether the creation of estates for life in agricultural lands, with a reservation of rent, are prohibited by the Constitution; in other words, whether the instrument of grant • or lease creating such an estate is void ab initio. In ascertaining the true interpretation of this constitutional provision and in determining the extent or limits of its operation, we may be assisted in arriving at a just conclusion by a statement of certain general principles.
In Settle v. Van Evrea (49 N. Y. 280, 2S5) the court held that the restriction against certain judicial officers .acting as referees did not apply to “ Commissioners of Appeals ” because the clause in the Constitution there under consideration did not, by its terms, literally include those officers, though the same reasons must have existed for including the commissioners in the prohibition which were applicable to the Court of Appeals proper. Allen, J., stated the true principle of interpretation to be observed, in these words: - “ If, to meet exigencies and to prevent mischiefs, it is allowable sometimes to depart from the strict letter of a law and imply an intent not clearly expressed in the construction of ordinary statutes, which may be framed in. haste and with none of the formalities that attend the preparation and adoption of a State Constitution, it would be dangerous in the extreme* to extend the operation and effect of a written constitution by construction beyond the fair scope of its terms, merely because a restricted and more literal interpretation might be inconvenient or impolitic, or because a case may be ¡supposed to be, to some extent, within the reasons which led to . the introduction of some particular provision plain and precise in its terms. ■ .
“ That would be, pro tanto, to establish a new Constitution, and do for the'people what they have not done for themselves.'. The terms
“ The prohibition is simple and direct, contained in a single paragraph, the terms of which are apposite, conveying a distinct and definite idea, and if they are extended, it can only be done by conjecture, as to the possible intent of the framers of the clause, and upon a theory as to some policy supposed to be shadowed forth. The effect of the prohibition cannot be enlarged by conjecture or implication.” (See, also, People ex rel. Williams v. Dayton, 55 N. Y. 367, 375; Countryman v. Norton, 21 Hun, 17, 19.)
If a lease or grant of an estate for life is to be judicially declared to be one “ for a longer period than twelve years,” and, therefore, obnoxious to the constitutional limitation, such adjudication must be founded, not upon the particular words or terms in which the prohibition is expressed, but rather upon some supposed principle of public policy. Or, in other words, that such a grant conies within the spirit of the provision, though not within the letter. But the application of such a principle of interpretation to a constitutional or statutory provision of this character, restricting, as it does, the right of free alienation of property, is not proper. The right of alienation being a fundamental right, it is subject only to such ■restrictions and limitations in its exercise as the Constitution may prescribe, either in express terms or by clear and necessary implication, or to such restrictions as the Legislature, acting within its constitutional powers, may deem proper to impose for the public good. A particular prohibition upon the free .alienation of jiroperty cannot be extended or enlarged beyond the terms in which the restriction is expressed by the application of any rule of liberal interpretation. On the contrary, the provision must be made to bear a restrictive interpretation, and be limited in its operation and effect by the language employed. If we hold that an estate for life is, per se, an estate exceeding twelve years in duration, and, therefore, void, it follows that such estates in agricultural lands, with a reservation of rent, are entirely abrogated, and the owner of property is prohibited from creating such an estate, either for his
The learned judge (Spring, J.) who delivered the opinion in the court below, well says, that the instrument itself does not, in express terms,- come within the prohibition of the Constitution. The term may extend beyond the restricted period, or it may expire before that time. The provision curtails the rights of owners of estates. It places a restriction.upon the disposition of their property. And. in order to make this curtailment, this restriction, effective, the instrument itself should clearly come within the pale of the inhibition. That the court cannot hold as matter of law that this instrument will extend for a longer period than twelve years. Its termination depends upon providential interposition and not upon the volition of the parties, so there was no attempt to violate the Constitutional interdict, as in some of the cases. Mow, since the creation of life estates is not prohibited, the only effect the constitutional provision can have upon them is to limit their duration to a period beyond which they shall not extend.
The decisions under the clause of the Statute of Frauds, declaring void every parol agreement that by its terms is not to be performed within one year, have some application to this case by-way of analogy. Where the time of performance was made to depend ..upon the contingency of death, and though that did not in fact occur within twenty years, it was held not within the condemnation of the-statute. (Kent v. Kent, 62 N. Y. 560.)
And a verbal contract to build and maintain a switch for plaintiff’s benefit, for shipping purposes, “ so long as he needs it,”, is not within the statute, nor is it a grant of “ an estate * * - * for a term of more than one year, in lands and tenements,” or a “ contract for the sale of real estate or the lease thereof for a longer term than one year,” within the Texas Statute of Frauds. (Warner v. Texas & P. Ry. Co., 164 U. S. 435.)
The principle upon which all these adjudications rest might well be invoked in support of the proposition that life estates do not come within the condemnation of a provision limiting the duration of estates for years; in other, words, that the specification of a time certain does not prohibit in any manner the creation of estates .for a time uncertain, and that such estates are valid and continue .in operation until the happening of the contingency upon which they are made to depend, even though they should extend beyond the period limited. It is. sufficient for the purposes of a decision* however, to hold that the provision is but a- limitation upon the duration of the life estate, and not one that annuls the instrument'of grant or lease by which it is created.
Reference may properly be made to the proceedings and debates in the Constitutional Convention of 1846. Mr. Brundage, one of the delegates, moved to insert after “ years ” the words “ or natural life of the grantee,”, and made this observation: “ The right to dispose of one’s property during one’s own life was a right which was inalienable, arid which he would not divest himself of or others.” The proposed amendment was negatived by a decisive vote — seventy-six to four. It is difficult to comprehend what was the particular purpose of the amendment, or what were the-reasons that, actuated the delegates in refusing to adopt it The effect of it would be to extend the duration of the estate beyond twelve years, if the lessee or grantee should so long survive. ■ Was that the reason why the amendment was rejected — with the intention that .the provision should stand as a limitation of all life estates, whether for that of the grantor or the grantee ? Or was it rejected because its effect would be to prevent an owner of agricultural lands from .creating an estate for his. own life, and that the convention did not propose to do? Or, in other words, that the creation and duration .of life estates should not be affected ? That the convention should remain silent upon that subject ? That legislation respecting chattels real must necessarily be construed to be applicable to freehold estates, either as prohibiting their creation or as a limitation upon their duration ?
This, I believe, is the first instance, in. the history of the law, of
In Stephens v. Reynolds (6 N. Y. 454) it was held that a lease-for life, conditioned that the lessee should occupy the land and support the lessor for life, was not within the constitutional inhibition.
In Parsell v. Stryker (41 N. Y. 480) there was a lease for life, with an agreement to work the premises on shares, and the court held that, as no rent, as such, was reserved, the lease was valid.
t is true that the court was not called upon in those cases to decide that a life estate, with a reservation of rent or service, came within the condemnation of the Constitution, as well as an estate for years — since it was determined that there was no reservation of rent or service— yet the opinions of the judges indicate that it was their understanding that the Constitution was intended to apply to estates for life, and the opinions of those eminent judges are entitled to much consideration, and especially so as to Ruggles, Ch. J., who was a member of the convention and concurred in the opinions, in 6 New York, 454. In deference to these opinions we are constrained to hold that estates for life are affected by the Constitution. Still, it by no means follows that life estates in such lands were-intended to be abrogated, and since there is no declaration to that, effect, the Constitution may properly and rightly be construed to-operate simply as a limitation upon the period of their continuance. It is neither declared that leases for life shall be void, or shall not be valid, or that they shall not be created in respect of agricultural lands. Nor is it declared that all leases shall be for a term, of years, and not otherwise created. And, in analogy to the rule respecting-legislative acts," w.e are not at liberty to declare the grant void,
• .It. is .unnecessary , to allude to the provisions of the Revised Statutes respecting suspension of power of alienation beyond two-lives in being, or. as to remainders on successive estates for life beyond two livés. I do not perceive that these provisions; have ■application to reversions. The latter provision only speaks of remainders limited, on successive life estates, and I do not find a provision restricting the power to make a lease depending, say, upon ¡the life of the lessor, his children, issue or descendants, etc. In the latter instance, is the absolute power of alienation suspended, even ■if it is expressly made to last as long as the life of the survivor of half a dozen lives? . Since the fee may always be conveyed subject to the life estate. (See Chapl. Susp. Alien. 129, 1-3; Purdy v. Hayt, 92 N. Y. 451.)
We conclude, therefore, that ■ the ' public policy declared by the Constitution will not be violated by giving effect and operation to the life estate created until the expiration of the period limited by the Constitution.
The judgment, therefore, should be affirmed,, with costs.
Hardin, P. J., concurred, with opinion; Ward, J., concurred; Follett, J., dissented, with opinion in which Adams, J., concurred.
On the 25th day of February, 1888, Elisha Parish was the owner of the premises described in the complaint. On that day he éxe■cuted a lease to Rogers, the defendant, which was “ for and during the term of the natural life of the party of the first part and .his wife,, Cynthia Parish, from the first day of April, 1888, which term, will, end when the- natural life of Elisha IE and Cynthia Parish terminates and ends.” ■
The inhibition of article 1, section 13, of the Constitution is ¡against the execution of a leaseof grant' of agricultural lands ‘‘ for a longer period than twelve years.” The period mentioned in the lease may not be twelve months. From the terms of the instrument itself it cannot be demonstrated that it will carry to the lessee the fight to occupy “ for a period longer than twelve years.” How
In Hart v. Hart (22 Barb. 606) it was held that a lease of agricultural lands for twelve years, “ with a ■ covenant of renewal for twelve years longer if the lessor shall live,” was good for the first twelve years. .
In the course of the opinion delivered in Clark v. Barnes (76 N. Y. 304) it was said, in speaking of the constitutional provision, viz.: “ This provision condemns all leases for a longer period than twelve years. A lease for a longer period than that would not be valid for twelve' years, but the lease itself would be void m toto.” In that ease a stipulation had been entered into to execute two leases of the same farm, one for eight years and another for twelve years from the termination of the first, and the two leases were construed ■ together, and, therefore, it was declared that they were both void inasmuch as they, in terms, provided for a period beyond that mentioned in the constitutional restriction.
To allow the plaintiff to recover possession of the lands would defeat the intention of the testator.
Under the circumstances of this case I am inclined to vote.for an affirmance.
Dissenting Opinion
This action (ejectment) was begun April 13, 1896, to recover a farm in the possession of the defendant. There is no dispute about
• Under this lease the defendant took possession of the premises and now occupies them. March 14, 1889, Elisha H. Parish died leaving a last will and testament, executed July 25, 1888, duly pro-r bated March 18, 1889, by which he devised this farm to his son, the plaintiff, in fee.
It is conceded that the premises leased are agricultural lands and that Cynthia Parish is living. The first and principal question involved on this appeal is whether the lease is void under section 13 of article 1 of the Constitution of this State, which provides:
“ § 13, Ho lease or grant of agricultural land, for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid.”
It was held by -the court below, and it is urged on this appeal, that as the lease was for two lives in being at the date of its execution, and not in terms for more than twelve years, it is not violative ■ of the Constitution, because it may terminate within twelve years from the date of its execution by the death of both persons upon whose lives the term is limited.
This position is subversive of the spirit and purpose of the section of the Constitution above quoted. Before the adoption of the Constitution of 1846 it was the custom of the owners of large landed estates to grant perpetual leases, called leases in fee, reserving rent, which endured so long as the rent was paid,, and also leases reserv
That it was the purpose of the convention to prohibit the granting thereafter of leases of agricultural lands, reserving rent, either in perpetuity or for lives, is, as I think, conclusively shown by the proceedings of that body. Among other committees appointed by the convention was Ho. 18, “ On the Creation and Division of Estates in Lands,” of which Judge Samuel Nelson was chairman, but owing to his absence during a large part of the session of the convention Judge Ira Harris became the acting chairman. This committee reported in favor of limiting leases of agricultural lands : to a period of ten years. Mr. Benjamin S. Brundage, of Steuben, who opposed, throughout the convention, any limitation upon the. right of landowners to lease their lands, moved to amend the section as reported by inserting after the word “years” the words “or, natural life of the grantee.” It would seem that the word “ grantee ” is a misprint for “ grantor,” for, in support of his proposed amendment, Mr. Brundage said : “ The right to dispose of one’s property during one’s own life was a right which was inalienable, and which he would not divest himself of or others.” (Debates Const. Conv. 1846 [Argus ed.], 804.) The Journal shows (pp. 1326, 1328) that the amendment proposed by Mr. Brundage was defeated by seventy-six votes against and five for it. At different times when the question was before the convention various amendments were offered that the term be limited to seven and to twenty-one years, but finally a term of twelve years was agreed upon. For an account of the proceedings on this subject see pages 681, 782, 802-805, 815 and 907 of the Argus edition of the Debates.
In the construction of constitutional and statutory provisions the mischief sought to be prevented should always be borne in mind, and the provision under consideration should be so construed as to prevent the mischief at which it was aimed. The mischief sought to be prevented was the creation of long terms by leases of agricul
The evils arising from leases in fee and from leases for life were the subject of debates not only in the convention, but before it convened they had been discussed in executive messages, in the Legislature, and widely in the newspapers and pamphlets of the day. But in all the discussions the proposition was never advanced to abolish the right to lease agricultural' lands for a long term of years and preserve the right to lease such lands in fee or for lives. The state of affairs ■ existing at the, time a statute is passed or a Constitution is adopted must be taken into consideration when interpreting either. This provision has been in force for more than fifty years, and no case has been found raising the question that leases for lives, reserving rent, of agricultural lands were not within the section. In Van Rensselaer v. Dennison (35 N. Y. 393) it is assumed that leases in fee are prohibited by the Constitution.
When the Constitution was adopted estates in land were (1 R. S. 722, § 1) as they now are (Chap. 547, Laws of 1896, § 20) divided into estates of inheritance, estates for life, estates for years and estates at will, and by sufferance. This lease,, if valid, created a freehold estate in the grantee during his life (1 R. S. 722,, § 6; chap. 547, Laws of 1896, § 24), out of which estate rent was reserved, which was precisely what the section of the Constitution was designed to prevent.
Under the common law and under -our statutes estates for lives always have been, and now are, deemed superior to estates for years. It seems inconsistent to hold that the provision is limited in its application to leases for years of agricultural lands, and that it imposes no restriction upon leases for lives, out of which the evils arose - which the provision was designed to prevent. I am of the opinion that leases for lives of agricultural lands, reserving rent, are prohibited by the Constitution, and that the lease under which the defendant claims is Void.
It is urged that a person may waive a constitutional provision, or so conduct himself as to be estopped from asserting it. This is true when the provision simply relates to a private right, but it is not true when the provision is part of the public policy of the State
The judgment should be reversed and a new trial granted, with costs to abide the event.
Adams, J., concurred.
Judgment affirmed, with-costs. •
