Whittemore v. Woodlawn Cemetery

We think the questions presented by this submission may be solved with approximate accuracy when the title under which' the cemetery association holds is clearly understood. By the provisions of the statute the land is dedicated, when acquired by the corporation, to cemetery purposes. As between the purchaser of a lot and the association, the former only acquires an easement in the lot so purchased for burial purposes. Such easement, however, is irrevocable and continues during the time that the plots or lots continue to be used for such purpose. The title to the land, however, remains in the cemetery association, and it holds the legal title subject to the exclusive right of the lot holder. (Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503 .) No question, however, arises in this submission out of the relations existing between the owner of the burial plot and the corporation or the certificate holder. The whole question is, therefore, to be solved based upon a consideration of the rights and liabilities of the corporation upon one hand and the certificate holders upon the other.

The corporation was authorized by the statute (Laws of 1847, chap. 133, § 4) to acquire for cemetery purposes 200 acres of land, and by special act (Laws of 1864, chap. 325) was further authorized, upon certain conditions, to take and hold for the same purpose not exceeding 250 acres of additional, land. The corporation was organized and the lands acquired by. virtue of the provisions of these two acts. The question, therefore, is, what title did the association acquire by virtue of the contracts of conveyancé. By the provisions of section 4 of chapter 133 of the Laws of 1847 it is provided that the lands acquired by the corporation are “ to be held and

It was said in Rawson v. Inhabitants of School Dist. No. 5 in Uxbridge (7 Allen [Mass.], 125) that “ Where a deed is made in express terms for a specific purpose, or in consideration of an act to be done or service rendered, it will be interpreted as creating a conditional estate. But this is an exception to the general rule, and is confined to cases where the subject-matter of the grant is in its nature executory, as of an annuity to be paid for service to be rendered or a right or privilege to be enjoyed; in such case if the service be not performed or the enjoyment of the right or privilege be withheld which formed the consideration of a grant, the grantor will be relieved from the further execution of the grant, to wit, the payment of the annuity.” In the case cited, one Daniel Taft granted to the inhabitants of the town of Uxbridge a burial plot by a deed which recited “ for and in consideration of the love and affection I bear to ye town of Uxbridge, and for diverse other valueable considerations me moveing hereunto, said land being improved for a burying place; to have and to hold the said given and granted premises, with all ye. appurc&s, privileges and commodities to the same belonging or in anywise appertaining, to the said town of Uxbridge forever, to their only proper use, benefit and behoofe, for a burying

In the present case, both the grant and the statute provide and require that the land conveyed shall be devoted to a specific purpose, which inures to the benefit of the grantors and which in its nature is executory; therefore, the same is conditioned upon the performance of the act which furnishes consideration for the grant. It is true that conditions subsequent, by which an estate is defeated, are not favored in the law, but where the condition is clear and unequivocal and its performance remains executory, a condition subsequent operates wfith as much force as any other and is to be supported and upheld. The very necessity of this case required that the condition upon which the grant was founded must be subsequent, as .it remained executory,, and, consequently, compliance therewith by execution was annexed to the substance of the grant, and the estate would be defeated if compliance were not had with its terms. (2 Washb. Real Prop. [5th ed.] 2; Tied. Real Prop. [2d ed.] § 271 et seq.; Laberee v. Carleton, 53 Maine, 211.)

It cannot be doubted in the present case but that if this association had attempted to make conveyance of these lands for other purposes than that of burial in the method specified by the statute and by the grant, it would be in violation of the condition which

. All grants of land, with few exceptions, are held subject to the exercise of the sovereign power of the State, the only limitation' being that when the State exercises such power or authorizes it® exercise, compensation for the property taken thereunder must be' made. The-condition of this land was such that at the time of the' exercise of the' sovereign power it was subject thereto, and it of course must be held that both parties granted and received this, property subject to its exercise, This being the condition under which the lands were held, the corporation could not be charged, with a'breach of the condition under which it held'the land so as to-work a forfeiture of the grant and authorize a re-entry for the breach.

It is clear, however, that the rights of the grantors and also of the corporation in the land were not defeated by reason of such comdition. The purpose for which the land was to be devoted had. failed. It was rendered impossible of performance by an act of supreme power, but such condition did not deprive the parties of right to compensation for their interest in the land. Héither did it authorize the appropriation of the whole of the proceeds by one to the exclusion of the other. Such result would be manifestly inequitable. •

It is a well-settled equitable rule to grant relief in case of forfeiture where the breach arises out of an accident and where the damages resulting "therefrom can be accurately estimated' by the: court: Under such circumstances equity will prevent a forfeiture and decree:in place thereof compensation in damages. (Tied. Real

The fact that under the grant a portion or the whole of this land might have been laid out in streets and alleys, from which the plaintiff would have received nothing, is not of consequence; it is a sufficient answer to say that it was not so laid out, but, on the contrary, was sold and money realized therefrom. If it had been laid out in streets and alleys no money would have been realized therefrom by the association; therefore, the parties stand upon terms of equality in this respect. In every case under the grant, when money was realized by the sale of lots and plots, the plaintiff shared therein on equal terms. When that was defeated and the sale otherwise made, the money realized therefrom belonged to each of the parties equitably in proportion as it would have been had it been produced in the manner contemplated by the grant.

In the view we have taken of the statute and the construction of the grant thereunder, the doctrine announced in Thacher v. H.

' It follows from these views that judgment should be ordered providing that the plaintiff be awarded his proportional interest in one-half of the fund, with costs.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Ingraham, J.,-dissented.

(dissenting):

The decision in this case is based, as I understand it, upon the principle that there was attached to this conveyance,, by its terms and by the provisions of the act under which. the land was acquired, a condition subsequent which, upon a failure to perform it, defeated- the conveyance and authorized a re-entry; that by reason of the appropriation by the city of New York under the right of eminent domain of a portion of the property, which was conveyed to the defendant, this condition subsequent was broken and there was thereby given to the grantors .a right of re-entry which entitled these grantors to one-half of the amount paid by the city of New York as the value of the. property appropriated by the city of New York for public purposes, and my difference with my associates is based upon my dissent from this proposition. The conveyance by the plaintiff and his associates to the corporation is not made a part of the record. All that we have is the statement in the submission that “ Oñ May 31,1864, an agreement was entered into between The Woodlawn Cemetery^ as party of the first part, and Absalom Peters and others, as parties of the second part, a copy of which is hereto annexed marked .‘Exhibit A.’ The lands .referred to in said ‘Exhibit A’ were duly conveyed to The Wood-lawn Cemetery as recited in the said agreement and contemporaneously therewith.” The agreement recites that the parties named, as parties of the second part, were the owners,of certain pieces or parcels of land therein specifically described and that they had sold

We have, therefore, a statement by the parties to the controversy that the lands have been conveyed to the defendant, and as a consideration therefor the defendant had executed an agreement whereby it had agreed to pay to the grantors one-half of the proceeds of all sales of lots and plots made from the said land. I am unable to see how it can be said that, from this recital of the conveyance or from the statute under which the defendant was incorporated, there is an indication that the conveyance was other than an absolute conveyance of the land to the defendant. Certainly if this conveyance was made for a present consideration, it would be absolute, subject to no condition. Instead of the grantors insisting upon a present consideration, they accepted the obligation of the defendant to pay one-half of the amount that it would receive for the sale of lots and plots of the said lands. It may be that there was an implied covenant of the defendant that the property should be devoted to cemetery purposes, for in no other way could the agreement made by the defendant be carried out, and by the act under which the company was incorporated it was required to devote the property purchased to such purposes; but to say that that covenant constituted a condition subsequent, by which upon a breach of the covenant the title to the land should revert to the grantors, would be, I think, totally inconsistent with the declared object of the incorporation of the defendant, and the intention of the parties to the agreement and conveyance. That intent was that the defendant should sell lots or plots to those desiring them for cemetery purposes. That object would be entirely defeated if there was reserved

Assuming, however, that there was a condition subsequent, which. was broken upon the appropriation of a portion of the property -by the city of New York, it was the grantors or their heirs, and they only, who could take advantage of it. The election to do so could be signified by a re-entry, or some other equivalent act (6 Am,. & Eng. Ency.of Law [2d ed.], 506; 2 Washb. Real Prop. [5th ed.] 14) where it is said: “ By the common law, the only mode of taking-advantage of a breach of a condition which had the effect to defeat or work a forfeiture of an estate was by an entry, upon the principle-that it required as solemn an act to defeat as to create an estate. And when such entry had been made, the. effect was to reduce the estate to the same plight, and to cause it to be held on the same terms as if the estate to which the condition was annexed had not been granted,” and nothing short of an actual entry will serve to-defeat an estate upon a condition which has been broken. (2 Washb, Real Prop; [5th ed.] 18.) This right of re-entry is a right which, cannot be aliened or assigned or passed by a grant of the reversion at common law. “ Such right is not a reversion, nor a possibility of a reversion, nor is it an estate in land; it is a mere chose in action, and, when enforced, the grantor is in by the forfeiture of the condition and not by reverter.” (2 Washb. Real Prop. [5th ed.] 16 ; Van Rensselaer v. Ball, 19 N. Y. 102 .)

The plaintiff is not, however, one of the grantors, nor, so far as-

The learned counsel for the plaintiif makes no claim that the conveyance was not absolute, nor does the submission state that any such question is involved. The answer to the claim of the plaintiif that he and the other certificate holders are entitled to this money as the enforcement of a lien for the unpaid consideration money to which the grantors were entitled for the conveyance of the property^ seems to me to be that there is nothing due by the defendant as the consideration for the property conveyed to the defendant, The conveyance was made, as it is expressly stated in the submission, in consideration of the defendant executing the agreement, a copy of. which is thereto annexed. The- grantor accepted the covenant of the defendant to pay in the future one-half of the moneys’ that it received upon the sale of lots or plots of land for cemetery purposes, and there is no allegation that that obligation of the defendant has not been fully performed. The parties to this agreement contemplated that the defendant should apply a portion Of the premises granted for avenues, paths, alleys and walks.'. The proportion of the property to be so applied was not specified, and the holders of the certificates were to have no interest in such portion of the property. What they were entitled to was an application by the cemetéry company of one-half of the moneys received by it from the sale of lots or plots of land laid out for burial purposes. It is not alleged that any portion of the property taken by the city was that which had been laid out for such purposes, in the proceeds of the sale of which the certificate holders had an interest. The appropriation of this portion of the land conveyed to the cemetery as a public street or avenue would be an advantage to the cemetery as supplying it with means of access. It could certainly make no difference to the holders of these certificates whether a portion of the cemetery lands ■was laid out by the cemetery association as a road or avenue or by the public for the same purpose. The appropriation of this land as' a public street or avenue was not thus foreign to the purposes for

I think, therefore, that the defendant is entitled to judgment.

Judgment ordered for plaintiff as directed in opinion, with costs.