Lyon v. Hersey

• Decision Date: 05 October 1886
• Citation: 8 N.E. 518,103 N.Y. 264
• Parties: LYON, Ex'x, and others v. HERSEY and others.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 264

8 N.E. 518

LYON, Ex'x, and others

v.HERSEY and others.

Court of Appeals of New York.

October 5, 1886.

Appeal from judgment of the general term of the supreme court for the Fourth judicial department, affirming judgment of the special term for the county of Lewis.

Complaint to procure the annulling of an executory contract. Judgment dismissing the complaint. Plaintiffs appeal.

C. D. Adams, for appellants, Mary B. Lyon, Ex'x, and others.

Francis Kernan, for respondents, Charles W. Hersey, and others.

RUGER, C. J.

The complaint in this action was framed to procure a decree annulling an executory contract between certain of the plaintiffs, as executors of the estate of Lyman R. Lyon, vendors, and the firm of C. J. Lyon, as vendees, for the sale of the hemlock bark on the Brantingham tract, in Lewis county, and to determine the ownership of that portion of such bark as was then cut, but not removed from the premises. The action is based upon the claim that the destruction of the Moose River tannery rendered the performance by the vendees of an alleged implied agreement to use it therein impossible, and there fore that the title to such bark as then remained unused reverted to the owners of the land. The question arises under a clause in the contract following the description of the premises upon which the bark was grown, reading as follows: ‘Said lots being in the vicinity of Moose River tannery, said bark to be used there in carrying said tannery on.’

At the date of the contract, in January, 1871, some of the plaintiffs were the owners, as trustees under the will of Lyman R. Lyon, of an undivided three-eighths of said tannery, and Chester J. Lyon, also an executor, was the owner of the remaining five-eighths, the whole consisting of a tannery, and about 1,000 acres of land. The said executors were also trustees with power of sale, under the will of Lyman R. Lyon, of the Brantingham tract, upon which there was then growing about 30,000 cords of bark. The contract provided, among other things, that, ‘for the aforesaid bark on the tree, second parties agree to pay first parties fifty cents per cord; said bark to be paid for before removed from the land, unless otherwise satisfactorily arranged, and to remain the property of the estate until paid for.’ ‘The second party are not to cut more than three thousand cords on the Brantingham tract per year,’ and are ‘to have the right and privilege to enter upon said lands to fell and cure said bark, and remove the same, as is usually done by tanners.’

The vendees, after its execution, immediately entered upon the performance of the contract, and, by themselves and their assignees, continued to cut, peel, and draw away bark in each year, for use in the Moose River tannery, until May 15, 1883, when the tannery building was accidentally destroyed by fire. There then remained about 6,000 cords of bark uncut on the described premises. On June 12, 1883, the plaintiffs served a written notice upon the defendants, claiming the right to terminate the contract by reason of the destruction of such tannery.

The customary period for cutting bark extends from June 1st to August 1st in each year, after which it is piled in the forest for airing, and remains there until snow falls, when it is drawn to market for use the following season. If kept over the season, the strength deteriorates, and its value becomes diminished. It was customary for parties buying bark to make contracts for cutting and piling it as early as April or May, and in the present case it was proved that the defendant had entered into such contract at that time. They had thus, in good faith, incurred a large liability, in the performance of their obligation to buy the bark, before any question arose as to their right to cut and carry it away. The work of stripping the bark in question commenced about the first of June, and had continued nearly two weeks, before the vendors attempted either to put an end to the contract or to repossess themselves of the bark cut. On the first of August, upwards of 2,500 cords of bark had been cut and piled upon the ground, ready for the curing process, at an expense to the vendees of several thousand dollars.

In the year 1879, by virtue of a sale in partition of the Moose River tannery property, the interest of the plaintiffs therein had become divested; and the defendants, or some of them, as purchasers on such sale, became the owners thereof, and have ever since retained such ownership. The defendants, or some of them, also became the owners, in 1879, of a large tract of land, with a tannery thereon, adjoining the Moose River tannery property, and prosecuted the business of tanning in both of said tanneries up to the time of the destruction of the latter tannery. Previous to the commencement of this action the defendants had claimed that the destruction of the Moose River tannery did not annul their contract, and that they had the right under it to cut bark on the Brantingham tract, for use in other places than the Moose River tannery. The plaintiffs, on the contrary, claimed that the destruction of the tannery ipso facto annulled the contract, and that thereby they became entitled to annul the contract, and retain the title and possession of all bark uncut, and recover possession of such as remained unremoved therefrom; and the logical effect of their contention would include all bark unused, which had been previously paid for, and removed from the premises by the vendees.

In discussing the questions presented, it will tend to obviate the confusion produced by some misleading analogies, if we eliminate therefrom the consideration of the cases cited relating to exceptions and reservations in conveyances, since, for obvious and well-recognized reasons, the language of this contract creates neither of those forms of estates. Craig v. Wells, 11 N. Y. 315. The appellant's claim, if at all tenable, can be supported only by demonstrating that the clause in question created either a condition or a limitation. We do not consider it very material whether it is one or the other, since, if either, it would terminate the defendants' interest, and the same result would be attained. If a condition, it must necessarily be a condition subsequent, for it could only be called into operation after the possession and title of the property had charged, and a diversion of its use by its vendees to a prohibited purpose had been attempted. Bouv. Inst. § 743.

Counsel, on the argument upon both sides, treated the provision as creating a limitation alone; but we are unable to agree with them, and can see in it none of the qualities of such an estate. The difference between a limitation and a condition is defined to be that, in order to defeat the estate in the latter case, it requires some act to be done-such as making an entry-to effect it; while in the former the happening of the event is in itself the limit beyond which the estate no longer exists, but it is determined by the operation of the law, without requiring any act to be done by any one. 2 Washb. Real Prop. 20. It is also said that a condition brings the estate back to the grantor or his heirs,-a conditional limitation carries it over to a stranger. The grantor or his heirs, alone having the right to defeat the estate by entry for condition broken, a condition terminates an estate,-a limitation creates a new one. 2 Washb. Real Prop. 22.

The attempt is here made, after an absolute grant of the bark, to cause the remaining bark to revert to the owners of the land, in accordance with the rule governing broken conditions, instead of carrying it over to the new estate, as a limitation requires. Even if such a rule could be applied, it would affect only so...