Post v. Well

• Decision Date: 08 October 1889
• Citation: 115 N.Y. 361,22 N.E. 145
• Parties: POST et al. v. WELL et al.
• Court: New York Court of Appeals Court of Appeals

115 N.Y. 361

22 N.E. 145

POST et al.

v.WELL et al.¹

Court of Appeals of New York.

Oct. 8, 1889.

Appeal from supreme court, general term, first department.

James C. Carter, for appellants.

Wm. M. Evarts, for respondents.

GRAY, J.

This action arose out of the refusal of the appellants' testator to complete his agreement to purchase certain lots of land in the city of New York. Their sale had been at public auction, and by its terms an indisputable title was offered to purchasers. Weil, the appellants' testator, refused to accept the deed, which was tendered to him, on the ground that, by the provisions of a former deed, on record, and through which the title of the vendors was derived, the property of which these lots were part was subject to the operation of a condition subsequent, to-wit, a condition that no part of the premises should ever be used or occupied as a tavern. Whether this objection was sound and available to Weil is the question which is involved in this appeal.

After a careful consideration of the facts, and upon a review of the whole situation, I am unable to find any serious difficulty in reading the clause in question as a covenant, whether we consider it on principles of strict law or of common justice. Mere words should not be, and have not usually been, deemed sufficient to constitute a condition, and to entail the consequences of forfeiture of an estate, unless, from the proof, such appears to have been the distinct intention of the grantor, and a necessary understanding of the parties to the instrument. Nor should the formal arrangement of the words influence us wholly in determining what the clause was inserted to accomplish; but in this, as in every other, case, our judgment should be guided by what was the probable intention, viewing the matter in the light of reason. The operation of this clause, as contended for by the appellant, would have been to effect a great injustice; whereas if, as we read it, it was intended as a covenant for the protection of property, no prejudice could accrue to any one, and the purpose in the original grant would be respected and preserved in all its integrity. I am aware of the difficulty which attends the discussion of the legal question involved in this case, and also of the importance which is given to it by the fact that the courts below have held the clause in the deed to be a condition subsequent, while they have enforced the performance of the agreement of purchase upon other grounds. I shall, therefore, briefly review the facts as they appear in the record before us, in order better to demonstrate that the conclusion to be drawn from them, as to the probable intention of the parties, is that the clause under consideration could only have been inserted as a covenant.

The premises in question were formerly part of a large estate lying in the upper portion of New York island, and known as ‘Monte Alta.’ That estate and an adjoining estate, known as ‘Claremont,’ were owned and occupied as farms and country residences by one Michael Hogan. In 1807 he entered into an agreement in writing with one Jacob Mark for the sale to him of the Monte Alta estate for a sum of $16,000, and the agreement contained this clause: ‘Upon the special condition that no part of the land or buildings thereon should ever be used or occupied as a tavern.’ In 1811, four years afterwards, Hogan and wife deeded to Robert Lenox, Jacob Stout, and John Wells, upon certain trusts, both of said estates; that of Monte Alta, however, subject to the agreement with Mark. These facts are disclosed, not by the agreement and deeds themselves,-for they do not appear to have been recorded, and they were not produced,-but from subsequent deeds, which were made by these grantees, or trustees, of Hogan, and the Hogans, in conveyance of the properties to others. We are without information as to the reason for the non-completion of Hogan's agreement with Mark from the year 1807, when it was made, until the year 1811; and we know nothing concerning the nature of the trusts upon which Lenox and his associates in the trust referred to received and held the properties. A few months after Hogan's conveyance to Lenox and others, Monte Alta was conveyed to Mark by a deed, in which were joined, as grantors, Hogan and wife and the said trustees. That deed recited the facts of the agreement of Hogan to sell to Mark, and of the conveyance by Hogan and wife to Lenox and others as trustees, subject to that agreement. It conveyed the fee of the premises, free of incumbrances, and with covenants of title and warranty, but with the following provision contained in the habendum clause, viz.: ‘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 hereafter used or occupied as a tavern or public house of any kind.’ The Hogans' grant was of their right, title, interest, dower, and right of dower, etc., in or to the premises described, while that of Lenox and others was directly of the premises themselves. It is quite probable that the union of the Hogans as grantors was to perfect the record title, which the absence from the records of their deed to Lenox and others might affect, and to prevent any question from being raised as to the validity of Mark's title. In the conveyance subsequently made, in 1812, of the Claremont estate, the grantors were the same as in that of Monte Alta, and the deed was similar in form; but it did not contain the clause respecting the use of the premises which I have quoted from the habendum clause in the deed of the Monte Alta property. In 1816 a release of that restrictive clause was, as matter of fact, executed, and the title was thus freed from any question which might arise by reason of its existence; but, as this release had not been recorded, and was lost at the time of the sale and of the tender of the deed by the vendors, and was not discovered and recorded until about two years afterwards, and after the commencement of this suit, it cannot be considered in determining upon the right of Weil to reject the title when the deed was tendered to him. He was entitled to rest upon the state of facts, as it was proved to be, when the refused to accept the deed. In 1819, Lenox and others executed to Hogan an instrument which, after reciting that they had settled and accounted with him touching the trust property by him conveyed to them in 1811, ‘as far as the same hath been sold, appropriated, collected, received, or disposed of by them,’ assigned and conveyed to him whatever remainder there might be of the trust property; and Hogan, by the same instrument, released them from all claims respecting the execution of the trusts. In 1821, Joel Post became the owner of both of these estates, and he and his heirs held the same from that time until the sale by the heirs, in 1873. These are all the material facts in the case. When this purchaser objected that the estate was subject to a common-law forfeiture, because of the condition subsequent reserved in the deed to Mark, the vendors answered that the tripartite deed to Mark did not reserve a condition on the grant in fee upon which a forfeiture would inure to the grantor or his heirs in case a tavern should at any time be kept on the lands comprising the Monte Alta estate, but a covenant which, running with the land, would, while kept alive, prove an equitable protection against any injury from its breach, in favor of any subsisting interest, entitled to insist upon a performance of the covenant. In that construction of the clause in the Mark deed we think the plaintiffs were right; and, as that conclusion would dispose of the whole case, no other of the answers which they make in defense of their title need be considered. I understand the appellants' counsel to concede that this appeal must succeed on the sole point that the reservation pointed out in the deed created a condition subsequent, and in fact it must be so; for if it created a covenant the union of both of the estates in Joel Post in 1821 would have the natural and legal result of extinguishing the covenant.

Although the words of the clause in question are apt to describe a condition subsequent, reserved by a grantor, we are in no wise obliged to take them literally. In the consideration of what, by the use of these words, was imported into the conveyance, we are at liberty to affix that meaning to them which the general view of the instrument and of the situation of the parties makes manifest. Whether they created a condition or a covenant must depend upon what was the intention of the parties, for covenants and conditions may be created by the same words. In order that a covenant shall be read from the words of an instrument, they need not be precise nor technical, nor in any particular form. In Bacon's Abridgment (‘Covenant,’ A)...