151 N.Y. 143 | NY | 1896
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *145 The question which this appeal presents is both interesting and important and its answer turns upon the construction to be given to the provisions of our Statute of Wills. I think, too, that there have been certain decisions made by the courts of this state upon the general question; the effect of which it would be very difficult to overlook, however much inclined we might feel to differ in our reasoning. The question is, can the plaintiff, claiming as heir at law of Mrs. Davey, maintain this action to recover the possession of the premises in question for the breach of the express condition in her grant; or has such a right passed under Mrs. Davey's will to her residuary legatee? The learned counsel for the appellant has argued, with ability and with force, against the plaintiff's right and the contention which he makes is that an interest remained in the grantor, which, being descendible to her heirs, was made devisable by the Revised Statutes and, therefore, passed under her will. If it is true that the plaintiff must rest her right to enter for breach of the condition upon the descent of some estate or interest left in the grantor, then, I think, the appellants' contention is right and this action should fail. But if, on the other hand, and as argued for the respondents, the plaintiff has the right to enter, not through the operation of the law of descent, but merely representatively, as heir at law, and the rule at common law has not been changed by our statutes, then, I think, we will find ourselves obliged to conclude that the devisee of Mrs. Davey was incapable of possessing a right of entry and that it belonged solely to her privies in blood.
At common law, the benefit of such a condition in a grant of real estate could be reserved only to the grantor and his heirs. It was not considered to be a devisable interest in the grantor *148
and the right of re-entry for a breach could not be assigned to a stranger. It was a non-assignable right and no other person than the grantor, or his heir, could take advantage of a condition which required a re-entry in order to revest the former estate. (See vol. IV, Kent's Com. pp. 122, 127; Jackson v. Topping, 1 Wend. 388, 395; Goodright v. Forrester, 8 East, at p. 566.) The reason, quaintly given in Lord COKE's Institutes, was that "under color thereof pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed, which the common law forbiddeth, as men to grant before they be in possession." (Coke upon Littleton, § 347.) In Greenleaf's Cruise on Real Property, (Vol. 1, title 13, chap. 1, § 15), the reason of the rule is thus given: "That it is a maxim of law, that nothing which lies in action, entry or re-entry, can be granted over; in order to discourage maintenance." Whatever criticisms may be made upon the reasons for the rule at common law, it must be recognized as a continuing rule of property; if not changed or done away with by the Revised Statutes. The effect of section 17 of article 1 of the State Constitution was to retain so much of the common law of England as formed the law of the colony of New York on the 19th day of April, 1775; where not repugnant to our form of government, or inapplicable to our institutions, and subject to such alterations as the legislature should from time to time make. The appellant, feeling bound to concede that the right of re-entry was not devisable at common law, claims that the Revised Statutes have altered the law, by the provision that "every estate and interest in real property descendible to heirs may be devised." (2 R.S. 57, § 2.) Undoubtedly, this language of the Statute of Wills is as comprehensive as it can be to cover real interests; but we are remitted, nevertheless, to the inquiry whether, here, what the grantor had with reference to the estate she had granted amounted in law to an estate or interest in the real property and therein lies the difficulty. At common law it was only a possibility of reverter and not a reversion. (4 Kent, 370; Martin v.Strachan, 5 Term Reports, *149
107.) Until the happening of the breach of the express condition in the deed and a revesting of the estate through re-entry, the whole title was in the grantee. Have the Revised Statutes changed the grantor's status? In chapter 1, part 2 of the Revised Statutes, upon the nature, qualities and alienation of estates in real property, article 1 of title 2 creates various estates in lands and divides them into those in possession and in expectancy. The latter class is again divided, first, into future estates limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination of a precedent estate; and, second, into reversions; which latter are defined to exist where the residue of an estate is left in the grantor, or his heirs, commencing in possession on the termination of a particular estate granted. By section 35 of the same article, it is, also, provided that "expectant estates are descendible, devisable and alienable in the same manner as estates in possession." If, therefore, there was any estate left in Mrs. Davey, upon her grant to Hughes, it was not one known to our statute on real property and all expectant estates, within which class it would have to fall, are abolished by the article, except such as are therein defined and which must be either estates limited to commence in possession at a future day; or reversions. The real interest contended for here would not satisfy the requirement of either class. The mere possibility of reverter, which was all there was in this case, could not be included within the "reversions" spoken of by the statute, within its letter or spirit. The Statute of Wills, through the use of such precise words as "every estate and interest in real property descendible to heirs," obviously, must have reference to such as are recognized by the Revised Statutes to be estates of inheritance. We would be without warrant in asserting the existence of any estate in Mrs. Davey in the premises granted to Hughes, whether at common law, or under the Revised Statutes. She had an election to enter for condition broken and she could release her right to do so. To those rights her heirs, after her decease, succeeded by force of *150
representation and not by descent. There was no estate upon which the Statute of Descents could operate; but as heirs, there devolved upon them the bundle or aggregate of the rights which resided in and survived the death of the grantor, their ancestor. Her legal personality was continued in them. An early and leading case in this state is that of Nicoll v. New York Erie R.R.Co. (
In this case, as it is in every case of a deed of the fee upon condition subsequent, the grantor parted with every interest and estate in the real property conveyed. That was her intention, within the legal presumption from the terms of the deed, and it was, also, the legal presumption that the condition would be performed by the grantee. That which the grantor retained was never regarded as an interest in real property, or as an assignable chose in action, and cannot be deemed such through any construction of our statute. Until the law is changed by some legislation, it must be regarded as still the settled rule that no one can take advantage of the breach of a condition subsequent, annexed to the grant of a fee, but the grantor or his heirs; or, in the case of an artificial person, its successors. Every estate and interest formerly enjoyed by the grantor were vested by the deed in the grantee. He undertook and agreed to perform the condition which is annexed to the grant and the presumption was that he would perform. If he, or those who succeeded in interest, failed to do so, within a reasonable time, then it became optional with the grantor to enter for a breach of the condition and to have a forfeiture of the estate declared. The grantor having died, the right to insist upon a forfeiture for breach of the condition *154 remained in the heir, as the person who occupies the place of the deceased.
The further point is made by the appellants that if the clause in the deed to Hughes created a condition subsequent, it could not be broken after his death, as there was no mention therein of his heirs, executors or assigns. I do not think, upon reading the whole of the habendum clause in the deed, that we can say that the condition amounted only to a personal covenant with the grantor. The language is, "to have and to hold the * * * premises * * * unto the said party of the second part, his heirs and assigns, to his and their own proper use, c., forever, upon the conditions following, to wit: That said party of the second part shall consecrate, or cause to be consecrated, the said property for the purpose of erecting a church building," c. The intention seems plain that the conveyance of the estate was upon condition and I do not think that the construction is permitted that it was a mere covenant on the part of the grantee, personal to him. The condition was one which, in its nature, was so annexed to the conveyance by the deed, as to qualify it. (2 Wn. Real Prop. *p. 455.) The language does not provide that the party of the second part, alone, shall consecrate, but that he shall cause to be consecrated the property, and, therefore, it was within his power, if he did not do so himself, to provide, in any disposition which he made of it, that his successors in interest should do so. They took the estate with knowledge of the condition affecting its title and cannot complain if bound by it. It seems to me that the natural and ordinary interpretation of the habendum clause is to create a condition subsequent; as the effect of which, in case of a failure to perform it, within a reasonable time, on the part of Hughes, or his heirs or assigns, the estate granted might be defeated, at the option of Mrs. Davey, or her heirs. The language of the clause is not merely descriptive of the consideration upon which the deed was given; but qualified the conveyance to the extent, or in the manner named. Considering the purpose of the grant by Mrs. Davey, we could not with reasonableness *155 of construction say that the condition she imposed was merely personal to Archbishop Hughes.
A careful consideration of these questions, and no other require discussion here, must lead us to the conclusion that the appeal cannot be sustained.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.