6 N.Y. 467, De Peyster v. Michael

Citation:6 N.Y. 467
Party Name:De Peyster v. Michael
Case Date:October 01, 1852
Court:New York Court of Appeals
 
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Page 467

6 N.Y. 467

DE PEYSTER

v.

MICHAEL.

New York Court of Appeal

October 1, 1852 a1

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COUNSEL

J. Sutherland, for appellant. The condition in the lease to which objection was taken on the trial, is valid and should be

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enforced, unless it is unlawful, impossible, or repugnant. (2 Black. Com. 156, 7; Co. Lit. 206a, 206 b, 223 a, 223 b, Bac. Abr. tit. Condition, K. L. M.; Comyn's Dig. Condition, D. 92 to 96; Wingate's Max. 638 to 645, 694.) With regard to all other conditions the maxim is volenti non fit injuria. (Broad v. Jollyfe, Cro. Jac. 596; Mitchell v. Reynolds, 1 P. Wms. 189; Doct. and Stud. Dial. 2, ch. 4,p. 122; 2 Black. Com. 321; Co. Litt. 98.)

That the condition is not impossible, is evident: the lessee, his heirs, &c. could pay the one quarter of the sale money; and could make the first offer to the lessor, his heirs, &c.

That it is not unlawful, we think, is equally clear. In Mitchell v. Reynolds, unlawful conditions are classified as follows: "All the instances of conditions against law in a proper sense, are reducible under one of these heads: 1. To do something that is malum in se, or malum prohibitum. (1 Inst. 206.) 2. To omit the doing of something that is a duty. (Palmer's R. 172; Hob. 12, Norton v. Simmes.) 3. To encourage such crimes or omissions. (Fitzherb. tit. Obligation, 13; Bro. tit. Obligation, 34; Dyer, 118.)"

It will not be contended that the condition in question provides for the doing of what is malum in se; or for the omission of a duty; or that it tends to encourage such crime or omission. If therefore it is unlawful, it is because it requires something to be done which is malum prohibitum.

The only statute which has been supposed to prohibit such conditions, is that concerning tenures, passed February 20, 1787, (1 R. L. 70,) by which "all fines for alienations" are abolished, or, in the words of the act, "taken away."

The condition in question is not a "fine for alienation," within the meaning of that statute. The fines there referred to, were originally exactions made by the king from his tenants in capite, for alienations by them without his license; on the ground that their estates were forfeited, under the 32d chapter of Magna Charta, by such alienations. These exactions were entirely arbitrary, prior to the statute, 1 Ed. 3, ch. 12, which limited the

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sums to be paid in such cases, and which were called "fines for alienation." (2 Thomas' Co. Litt. p. 220 to 223; 2 Inst. 65 to 67; Wright's Ten. 153 to 157; Vin. Ab. tit. Alienation.) These fines were never payable except by tenants in capite, or persons holding directly of the king. What was said to the contrary in Overbagh v. Petrie, (8 Barb. 40, 41,) was an error. They were abolished by the statute 12 Charles 2, of which our statute concerning tenures is, in this respect, substantially a transcript. The obligation to pay them was created by law, and therefore could be abolished by law. All the feudal burthens abolished by those statutes, were the incidents of certain tenures, by the feudal law, and arose from those tenures, out of the mere relation of lord and vassal, without any express contract of the parties, as the tenures themselves were created, not by contract, but by law. What the law so gave it took away, but the statute was never designed to interfere with express contracts between the parties. (See Amer. Jurist, No. 8, vol. 4, p. 240; 4 Bac. Abr. tit. Rent, A.; Lit. §§ 117, 130 to 132, 139, 213 to 217, 225 to 227; Co. Litt. 23 a, 67 b, 93 a, b, 142 a, b, 143 a, 170 a; Plowd. 174; Coke's Complete Copy-Holder, § 31; Black. Com. 42, 91, 92, 105, 299; Wright's Tenures, 35, 55, 138, 140, 145; 3 Kent's Com. 406, 409; 1 Wharton, 337, 347.)

If the condition in question is held to be within the statute by reason of its providing for the payment of a sum of money upon alienation, what is there to prevent like conditions in leases for lives or years being held also within the statute? There is nothing in the section abolishing fines for alienation which limits its operation to alienations of estates in fee; and yet it has been often held not to apply to fines or sums of money, required on the alienations of lesser estates. (Livingston v. Stickles, 7 Hill, 255; Jackson v. Groat, 7 Cowen, 285; 4 Kent's Com. 131.)

But if we concede that the statute is in terms broad enough to embrace the condition in question, it does not affect it, for the reason that it is not prohibitory, and being designed for the benefit of the tenant, he may by contract assume the burdens from which the statute relieved him so far as they were cast

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upon him by law. We claim that there is no right given to one party by law, not imposed as a duty on another, and where the contrary is not expressly prohibited, which the party to whom the right is given cannot relinquish, according to the maxim, "quilibet potest renunciare juri, pro se introducto." (Litt. § 98; Co. Litt. 98 b, 99 a, 223 b; 2 Black. Com. 319, 321; Broad v. Jollyfe, Cro. Jac. 596.)

We say, therefore, first, that the quarter sale money is not of the nature of the "fines for alienations," abolished by the statute; and second, that admitting it to be of the same nature, yet as those fines were abolished merely, not prohibited, the tenant might voluntarily assume an obligation of the same kind.

In Overbagh v. Petrie, before cited. (8 Barb. 28, 43,) which was referred to by the supreme court as containing the reasons for their judgment in this case, it was held that such reservation or condition, "if not a fine for alienation within the letter of the statute," was "certainly an evasion of its spirit, and fraught with all the evils intended to be corrected by it." It was also held in the same case, that the condition was void, "as against public policy."

The terms "spirit of a statute," if they possess any legal meaning, must have the same force as the words meaning, intent, and object of the statute; and with that construction, an evasion of "its spirit," is no doubt an infraction of the statute. In that sense, it has already been shown that the statute of 1787 has no bearing upon the present controversy. If the statute has any other spirit than that which its words import, we do not know how to find it, and shall not make the attempt.

In regard to the question of "public policy," while we do not deny that a contract may be declared void as against the policy of the law, we do deny that it can be declared void as against public policy not yet declared by any law. The court cannot make or abolish a rule or maxim of the common law, neither can it make a statute. The English courts have in one instance, at least, overthrown an act of parliament, but it has been pronounced "a bold and unexampled stretch of the power of judicial

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legislation," (4 Kent's Com. 13,) and if followed as a precedent, would render legislatures unnecessary. (See Hargraves' Note 6, to lib. 2, Co. Litt.; Taylor v. Horde, 1Burr. 99, argument of Knowler; Hawley v. Northampton, 8 Mass. 40.)

But how did the court arrive at the conclusion that this condition when made was against public policy? Its validity must depend upon the law at that time. We admit that it is now against public policy, and so is the lease itself, and all other leases of agricultural lands for a longer period than twelve years, because it is so declared in the constitution. (Sections 14 and 15, Art 1.) But the supreme court did not declare this lease void on that account; if it had, the plaintiff would have been entitled to judgment. We deny that this lease, or any condition contained in it, was against public policy in 1785, when it was made; on the contrary we allege that it was in accordance with the policy of that day, and for the mutual benefit of the parties to it. It rests with those who assert that it was against public policy, to sustain the assertion by reference to some statute then in force, or to some known rule or maxim of the common law. This has never yet been done.

There is another reason why the statute of 1787, should not be held to affect the lease in question. The lease was made in 1785, two years prior to the statute, and although the statute declares that fines for alienations are taken away from the 30th day of Aug. 1664, this retroactive clause should be held to embrace only fines given by law, and not those which had been created by the express contract of the parties.

The remaining ground of objection to the condition in question, is, that it is repugnant to the estate granted.

Repugnant conditions, are, either repugnant to the language of the grant, as a condition in a grant to the grantee and his heirs, that the heirs should not inherit; or they are repugnant to reason, as a condition in the conveyance of a farm, that the grantee should not put a weather cock on the barn, or any other absurd condition, the observance or breach of which would not be of any advantage or injury to the grantor, he having parted

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with all his interest and estate in the premises. (Co. Litt. 223 a; Roe v. Galliers, 2 T. R. 133; 4 Kent's Com. 131.) Courts of justice will not enforce a condition, the enforcement of which may be of injury to the grantee, and cannot benefit the grantor, or any one else. The law takes cognizance only of property, and rights and wrongs. It will not enforce idle conditions or contracts, from the enforcement of which no one can derive advantage. It was on this principle that in Newkirk v. Newkirk, (2 Caines' R. 345,) it was held, that a devise of lands to the testator's children, in case they continued to inhabit the town of H., otherwise not, was held to give a fee, the condition being regarded...

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