11 Paige Ch. 414 | New York Court of Chancery | 1845
The first objection to the complainant’s claim, to a specific performance, which is urged by the appellant’s counsel in this case, is that the conditional grant of the land, to the corporation, as stated in the complainant’s bill, is not
It is true, the bill shows that the defendants % have actually forfeited their right to the land granted for the square, by the non-performance of the conditions upon which it was granted. One of those conditions was that the corporation should immediately proceed to regulate the grounds, and enclose the square
The objection that the provision in the deed of cession, that the corporation' should immediately proceed to regulate the lands granted for the purpose of a public square, and should enclose and improve them in a particular manner, is a condition and not a covenant, cannot be sustained. It is true, the regulating, inclosing and improving of the land, is made a condition upon which the title of the corporation to the lands depends. But other language is used in the conveyance, which amounts to a covenant on the part of the corporation to perform such condition. The covenant to perform, abide by, and observe the conditions imposed upon the defendants by the acceptance of the deed, and which they have executed under their corporate seal, is an express covenant, not only to stand seised of the premises for the purposes of a public square, but also that they shall not be used for any other purpose; and that they will immediately proceed to regulate, enclose, and improve the premises, according to the conditions specified in the deed. (Shep. Touch. 122. Co. Litt. 203, b.)
The remaining question, and which is the important one in this case, is whether the instituting a suit at law for the breach of this covenant, and obtaining a satisfaction in damages in that suit, is a bar to a bill filed here for the specific performance of the covenant. For I have no doubt as to the right of the complainant to come into this court for the specific performance of such a covenant, in the first instance, upon a waiver of the forfeiture arising from the non-performance of the condition. The
When the condition upon which the land was granted, for the purposes of the square, was broken, by the neglect of the defendants to proceed immediately to regulate the lands granted, and to enclose .and improve them within a reasonable time, according to the condition of the grant and the obligation of their covenant, the complainant had the right, at his election, either to waive the forfeiture and file his bill here, to compel the defendants specifically to perform their covenant to regulate, inclose, and improve the land, and to pay him the damage they had sustained or might sustain by their neglect to do it within the year, which is stated to have been a reasonable time for that purpose, or to insist upon the forfeiture, and repossess himself of the land, for a breach of the condition. He also had a right to resort to a suit at law, upon the covenant of the defendants to proceed immediately to regulate, inclose and improve the land for the purpose of a square, and for his benefit as the owner of the adjoining lands. But this was an entire, and not a continuing covenant; and it had been wholly and entirely broken at the time of the commencement of the suit at law, against the defendants. For the declaration in that suit, as well as the bill in this, averred that the defendants might and could have regulated,inclosed and improved the premises, in the manner pre
In the case under consideration, the effect of exhausting the remedy of the complainant, by a suit at law upon the covenant, after an absolute and entire breach thereof, was .to leave the defendants at liberty to inclose and improve the premises in such manner as they might deem expedient, and without violating the other covenant in the deed of cession; to wit, that the lands granted should at all times and forever thereafter be appropriated to, and used exclusively for, the purposes of a public square. This last covenant is a Continuing one; upon which actions may be sustained from time to time, as often as the defendants appropriate the property, or suffer it to be appropriated, to any purpose other than that of a public square, until the complainant thinks proper to enforce the forfeiture, for breach of the condition. The amount of the recovery in each successive action, upon that covenant, would be only the damages for breaches which had occurred at the time of the commencement of the suit. And the recovery of such damages would not be a bar to an action for a subsequent misappropriation of the premises, to purposes prohibited by the covenant. But upon the covenant to' proceed immediately to regulate the grounds, and to inclose and improve them in a particular manner, the complainant
Although the claim of the complainant, to have a specific performance of the covenant for the breach of which he has already obtained a legal satisfaction in the suit at law, cannot be sustained, I think this general demurrer to the whole bill is not well taken. For thé bill shows a breach of another of the covenants, in relation to the uses to which the premises embraced in the grant shall be appropriated. And under the alternative prayer, for such other relief as the complainant may be entitled to, I think he may claim a specific performance of the condition, and covenant, that the lands granted for the purposes of a public square, shall be appropriated and used for that purpose exclusively. The bill states that the lands granted for a public square, have never been inclosed or improved, in any manner whatever, down to the time of filing of such bill, and that individuals have been permitted to occupy parts of such lands with shanties and pig sties; although, as the bill alleges, the lands granted for Stuyvesant square still remain in the hands of the corporation, under the conveyance from the complainant. This is clearly such an injury to the complainant, in reference to his adjacent property, as will authorize this court to decree a specific performance of the covenant that the premises shall be used for the purpose of a 'public square exclusively; and, in such decree, to require the defendants to remove these nuisances,
For these reasons, although I cannot agree with the assistant vice chancellor, in the conclusion that the convenant to inclose and improve the premises in a particular manner, and without unreasonable delay, was not merged in the recovery in the action at law, so as to deprive the complainant of the right to come here for a specific performance of that covenant, still the decre-tal order, overruling the general demurrer, as a defence to the whole relief sought by this bill, must be affirmed. For upon a general demurrer, if the complainant, is entitled to any relief, whatever in this court, upon the case made by his bill, the demurrer must be overruled. The decretal order appealed from
Order accordingly.