Trs. of Calvary Presbyterian Church of Buffalo v. Putnam

• Decision Date: 19 July 1928
• Parties: TRUSTEES OF CALVARY PRESBYTERIAN CHURCH OF BUFFALO v. PUTNAM et al.
• Court: New York Court of Appeals Court of Appeals

249 N.Y. 111

162 N.E. 601

TRUSTEES OF CALVARY PRESBYTERIAN CHURCH OF BUFFALO

v.PUTNAM et al.

Court of Appeals of New York.

July 19, 1928.

Action by the Trustees of the Calvary Presbyterian Church of Buffalo against George P. Putnam and others. Judgment for plaintiff, entered at Special Term (129 Misc. Rep. 506, 221 N. Y. S. 692) was unanimously affirmed (221 App. Div. 502, 224 N. Y. S. 651), and defendants appeal by permission.

Affirmed.Appeal from Supreme Court, Appellate Division, Fourth department.

Frank C. Laughlin, Frederic C. Scofield, Ralph W. Thomas, and Stewart W. Bowers, all of New York City, for appellants Wilfred Palmer and another.

George P. Keating, of Buffalo, for appellants George P. Putnam et al.

Charles J. Staples, Frederick G. Mitchell, William Doran Cushman, and William P. Conley, all of Buffalo, for respondent.

O'BRIEN, J.

Sixty-six years ago George Palmer and Harriet, his wife, conveyed to plaintiff a parcel of realty on Delaware avenue in Buffalo. In their deed several conditions were attached, one of which prescribes that the premises shall be perpetually maintained for religious purposes, and a covenant provides that upon the breach of any of the conditions the grantor or his heirs may reenter and take possession, and thereupon plaintiff's estate shall cease and determine. Mr. Palmer died 2 years after the execution of that deed and 35 years ago all his living heirs and next of kin, for a consideration, gave a quitclaim deed and covenanted with plaintiff that they would not at any time or in any manner enter upon or interfere with the enjoyment of the premises by plaintiff or its successors or assigns nor in any manner seek to enforce the covenants and conditionsof the deed of 1862. In 1926 plaintiff brought this action against all the heirs then living. The complaint alleges that, in the event of a breach of the conditions of the deed, defendants claim a right of reverter and reentry, and it prays for a judgment declaring, among other things, whether any possibility of reverter exists as to defendants and whether they or any other Palmer heirs who may hereafter be born would have any interest in or claim upon the premises in the nature of a right of re-entry or otherwise. It seeks a general declaration respecting the validity of its own title and the rights of the Palmer heirs.

[1][2][3][4] The conditions imposed by the deed clearly are subsequent rather than precedent. No one can doubt this proposition. Indeed, all the parties assume or concede it. Conditions subsequent are not favored. They are strictly construed because they tend to destroy estates. Public interest dictates that real property shall be readily transferable and that titles shall be reasonably marketable. Nicoll v. New York & Erie R. R. Co., 12 N. Y. 121, 131;Seneca Nation v. Appleby, 196 N. Y. 318, 323,89 N. E. 835;St. Stephen's Church v. Church of Transfiguration, 201 N. Y. 1, 10,94 N. E. 191, Ann. Cas. 1912A, 760. The grantor himself certainly was authorized to release the grantee from its obligation to perform conditions and, even prior to a breach, to waive his possible right of reverter. He could have taken any course agreeable to him by which this possible right might have been divested. No one disputes the proposition that, as long as the conditions existed unbroken, all interest in the estate remained out of the grantor and his heirs. Until the contingency happens the whole title is in the grantee. Vail v. L. I. R. R. Co., 106 N. Y. 283, 287,12 N. E. 607,60 Am. Rep. 449. Neither the grantor nor his heirs possessed anything except a right to take...