Richter v. Distelhurst (116 A.D. 269, 1906)

Clarke, J.:

Submission of a controversy on an agreed statement of facts.' Plaintiff agreed to sell and defendant agreed to buy a piece of property on Hiiith street in the city, of New York., The contract provided that the plaintiff should give a proper, deed containing a general warranty and the usual full covenants conveying and, assuring the fee simple, free from -all incumbrances, exbept a specified mortgage. On.the closing day defendant declined to take title upon ' the ground that the title of the plaintiff was not a fee simple, free from all incumbrances, as the premises were covered by a condition subsequent. The facts in regard to this are as follows : One Henry Kneeland died in,the year 1837 leaving a last will-and testament m which he appointed Charles Kneeland and Henry K. Bogert his executors and- trustees. In the will testator devised two-fifths of his estate to liis executors upon trust, “ to set apart, and ¡the proceeds or amount of one of said fifth parts in.good bonds and mortgages or in the purchase of productive real estate in fee in the City of New York ” for the benefit of a son and the other: fifth part for the benefit of a daughter, for life,, and for the purpose of making a distribution of his estate in the manner directed he authorized and empowered his executors to' sell at public or private sale"and' execute all proper conveyances; The executors, acting under the power contained-in the will, invested funds of th¡e estáte in-the premises referred to /in the contract herein, purchasing the same from one Cornelius Bogert by deed, dated February 16, 1844, and duly recorded. The said Bogert and- Kneeland, as¡ executors and trustees,'conveyed the premises .in question to one Rachel Leaven-Worth, by deed dated October 1, 1850, and recorded on October 31, 1854. Said deed, after the habendum clause and the general covenant as to title, contained the following : “ It is further covenanted and agreed between the parties hereto and the party of the_ second part hereby binds her heirs and assigns, not to erect or permit to be erected at any time hereafter upon said premises, any nuisance of any description, such as stables, slaughter, houses, liquor stores, colony houses, bone or soap boiling establishments, etc.; (sic) nor any building other than brick dwelling house of not less than two stories in height, under penalty of the forfeiture of the said lot to the parties of the first part or their assigns, upon any breach of this covenant.”

Bachel Leavenworth, grantee in said deed, died on March 14,1852, leaving a last will and testament, which was duly probated, in which Hathan Leavenworth and Frederick Sheldon were appointed executors. Said executors, under the authority"of an order of the Supreme Court, conveyed the said lot to William Knight by deed dated September 23, 1854, and recorded on October. 31, 1854. This deed is identical in form with the deed from Bogert and Kneeland, as executors and trustees, to Bachel Leavenworth, and contains the same covenant or condition.

The estate of Henry Kneeland.did not own any other real property in the immediate neighborhood of the premises in question, but the executors of Kneeland did own, as individuals, real property on either side of the said premises. The estate of Bachel Leavenworth did not own any real property in the neighborhood.

Do the deeds hereinbefore set forth impose a covenant or a condition subsequent upon the premises ? Whether or not a clause in a deed is to be interpreted as a covenant or as a condition subset quent does not depend entirely upon the technical language used.

In the case of Post v. Weil (115 N. Y. 361) the language of the first deed under consideration was as follows: “Upon the special condition that no part of the land or buildings thereon should ever be used or occupied as a tavern.” The second deed contained this clause: “Provided always, and these presents are upon this express condition, that the aforesaid premises shall not, nor shall any part thereof, or any building or buildings thereon erected or to be erected, be at any time heréafter used or occupied as a tavern or public house of any kind.” Judge Gray, in construing these to-be covenants, said: “ I would not pretend to' reconcile all the decisions which have been made upon the subject, but-1 readily extract the principle that technical words may be overlooked where they do not inevitably evidence the intention 'of parties. - * * * If we can construe tliis clause as an obligation to abstain from doing the thing described, which by acceptance of the deed became binding upon the grantee as an agreement, enforceable in behalf of any interest entitled to invoke its protection, I think we a’re in conscience bound to give that construction, and thereby place ourselves in accord with that inclination of the law, which regatos wjith disfavor conditions involving forfeiture of estates: In this connection it may be noted that there is no clause in the deed giving the right to re-enter for conditions broken. .While the presence of such'a clause ■is not essential to the creation of a condition subsequent by which an estate may be defeated at the exercise of an ejection by the grantor or his heirs to-re-enter,, yet its absence, to that extent, frees still more the case from the difficulty of giving a more benignant construction to the proviso clause. The presence- of a re-entry clause might make certain that which in its absence is left open to construction.”- In Graves v. Deterling (120 N. Y. 447). Judge Yahh said : “ There is no provision for a forfeiture