Towle v. Remsen

The controversy in regard to the title to the upland connected with the water lots, which are the subject of litigation in this case, has been so frequently before the courts of this State for adjudication that it is too late at this day to reconsider and review the grounds upon which these decisions are based. The doubts which may have existed heretofore in reference to the appellant’s rights in this respect, must of necessity yield to the numerous decisions of the courts, and the questions involved, and which have thus been solemnly disposed of, must be considered as res adjudícala. (See Cochran v. Van Surlay, 20 Wend., 365 ; Towle v. Forney, 14 N. Y., 423 ; Williamson v. Moore, decided April, 1862, and unreported; Clarke v. Davenport, 1 Bosw., 96 , affirmed in this court; Suydam v. Williamson, 24 How. [U. S.], 427.)

We pass then to a consideration of the question arising under the grant of the city of New York to the heirs of Mary Clarke in 1827, under whom the defendants claim title. The land under water originally belonged to the Crown of Great Britain, and passed by the Revolution to the State of New York. The portion between high and low water mark, known as the tide-way, was granted to the city by the early charters (Dougan charter, §§ 3 and 14; Montgomerie charter, § 37), and the corporation have an absolute fee in the same. (Nott v. Thayer, 2 Bosw., 61 .) It necessarily follows that the city had a perfect right, when it granted to the devisees of Clarke, to make the grant of their portion of the land in fee simple absolute. As to the land outside of the tide-way, the city took title under chapter 115 of the laws of 1807, with a proviso giving the pre-emptive right to the owners of the adjacent land in all grants made by the corporation of lands under water granted by said act. The claim of the appellant’s counsel, that the city by accepting the grant made to it under the act of 1807, with the proviso thereto annexed, consented to qualify its absolute title to the tide-way, and thereafter could grant land in such tide-way only to such persons to whom it could grant the land lying on the west of the tide-way, is not, we think, well supported. No such condition is made by the act referred to, and it would be going very far to hold that such a condition could become a part of the grant, without an express provision to that effect. The Legislature left it to the city to dispose of the interests mentioned upon the pro-'

The grant to the Clarke heirs, among other things, contained a condition, upon the construction of which the decision of this case very much depends, to which we shall hereafter have occasion to refer, and the question to be determined is, as to the effect of the condition in the grant in question. If it be a condition precedent the grant was void at the beginning. If a condition subsequent, it could only be taken advantage of afterwards by entry in accordance with law. It therefore becomes an important subject of inquiry, whether the condition referred to was a condition precedent, or a condition subsequent.

Precedent conditions are such as must happen or be performed before the estate can vest or be enlarged; subsequent are such as by the failure or non-performance of which an estate, already vested,, may be defeated. (2 Black. Com., 154; 4 Kent; 125.)

Where there is a condition precedent, the land is conveyed upon condition that the grantee do, or abstain from doing. something, or that something has happened or failed to happen, before the vesting of the estate. (1 Shep. Touch., 121, et seq.) In case of a condition subsequent, the estate becomes divested and ceases, and a right of re-entry arises upon the happening of the event provided for in the condition. Having in view these general rules, the question arises whether the estate granted by the grant, under which the defendant claims title, became vested at the time of the grant, or the vesting of the same in the grantees was deferred until the event constituting the condition occurred and was divested by the happening of such event. The grant under which the defendant claimed, conveyed in fee simple the land under water therein described, of which the land in controversy formed a portion. The grantees therein agreed to pay certain quit-rents annually, and to make and keep in repair

The grant most manifestly conveyed a present estate in fee simple which was liable to be defeated by a subsequent event, but which until that event occurred was vested in the grantees. The grantors evidently intended to pass, and did actually convey a title which was effective, until something transpired to disturb it. Until then, and not before, the grantees were to be seized. The grantees took possession, made improvements, and paid or wereTiable to pay rent, and when it appeared thereafter that the title failed, or when any default was made in the performance of any or either of the covenants contained in the grant, then, and not before, the grant became void, and the right to re-enter was in force. It cannot be seriously contended that the non-performance of either of the conditions in relation to the covenants would be a breach of a condition precedent.

The same thing was to be done at a future period of time in relation to each of these covenants before any right to re-enter existed, and it is very clear that this was to be subsequent to the period when the grantees were first seized. The condition as to the failure of title is connected with and constitutes a material portion of the covenants referred to, and all of these are controlled by the language employed previously, which clearly has in view a future occurrence; a time thereafter when it appeared that the grantees were not seized, or that they made default. It was then, and not before, that the condition was broken, and the grantees had

No precise technical words are required to constitute a condition precedent or subsequent, and the construction, if such a condition must always be founded upon the intention of the parties. (3 Cruise Digest, 448, title 32, chap. 24, § 7; id., tit. 13, chap. 1, § 10; Blacksmith v. Fellows, 3 Seld., 401; Underhill v. Sar. & Wash. R. R. Co., 20 Barb., 455 ; Spaulding v. Hallenbeck, 39 id., 79, 87.) Even when the act does not necessarily precede the vesting of the estate, but may accompany or follow it, if the act may as well be done afterwards as before the vesting of the estate, the condition is subsequent. (Martin v. Ballou, 13 Barb., 133 .) The intent of the parties in the grant is quite apparent. Large expensed were to be incurred by the grantees for the building and improvement of the streets therein named. Large spaces between these streets were to be filled up at a heavy outlay, and rents were to be paid annually. The improvements mentioned were also essential in order that the benefits to be derived from the grant might be realized. It is not reasonable to suppose that all these things were to be done without a particle of title or right being vested in the grantees. When they received the grant they had a right to assume, and it was clearly intended, that they should be seized of an estate. While they incurred the hazard of its being defeated by a re-entry under the covenant, they had strong ground to assume that no such entry would be established without some legal proceeding by the grantor. The stipulation that the grant was not to be taken as a covenant of warranty, nor to operate further than to pass the estate of the grantors, does not show that the intention of the parties was that the conditions should be precedent, but would seem to have been inserted by way of extreme caution, and so avoid liability for a failure of title. It could not affect

It is insisted that, if the conditions referred to are not conditions precedent, they constitute conditional limitations. We think that this position is not maintainable, and that the conditions in this grant are not brought within the definition of this term. The estate is not confined or limited to any particular contingency, but is absolute, unless there is a failure of title in the grantees to the upland, in which event a right of re-entry is given. To constitute a conditional limitation, the limitation must be over to a third person, which is not this case (4 Kent Com., 126, 127), or when, as in the case stated in 2 Black. Com., 155, land is granted to a man so long as he is parson of Dale, or while he continues unmarried, or until, out of the rents and profits, he shall make five hundred pounds, and the like. The condition in question does not come within any such rule, and cannot, under any aspect in which it can be considered, be regarded as a conditional limitation. (See 1 Brown & Hadley’s Com., [Wait’s Ed.], 603.)

If the condition was a condition subsequent then it can only be taken advantage of by a re-eytry by the grantors. And upon its determination the interest of the grantor and his representatives becomes a mere possibility of a reversion, incapable of being assigned. (Nicoll v. N. Y. & E. R. R. Co., 12 N. Y., 121 .) A right of re-entry for a breach o'"' a condition subsequent does not pass by a conveyance of the land, and until there is a re-entry by the grantor or his heirs, or the successors of the grantor for a breach of the condition. The estate is not forfeited, but remains unimpaired in the grantee. A mere stranger cannot take advantage of it. (Ibid.; Schulenberg v. Harriman, 21 Wall., 63 ; Fonda v. Sage, 46 Barb., 109 ; Underhill v. S. & W. R. R. Co., 20 Barb., 455 ; 4 Kent, 127; Hoyt v. Dillon, 19 Barb,, 644 -651.)

In the last case cited it is laid down by Brown, J., that a right of entry was not assignable, because as was said, “under

In Greenleaf’s Cruise on Real Property (Vol. 1, tit. 13, chap. 1, § 15), the reason of the rule of the common law that the estate is not defeated, although the condition be broken until entry by the grantor or his heirs, is stated to be, that it is a maxim of law that “ nothing which lies in action, entry, or re-entry, can be granted over in order to discourage maintenance.” There is no interest to assign before the breach, and after that the right of entry, as we have seen, is not capable of being transferred. There is no expression in the language of the re-entry clause, which excepts this provision from the general rules which apply to similar cases, and the use of the words “ enter into and act upon said premises,” evidently mean an entry by action according to law. There must first be á lawful entry, and afterwards such action in regard to the premises as the grantors would be authorized to take. The entry is the main purpose, and had it been intended that a resolution of the constituted authorities of the city of New York, or any other proceeding on their part should be substituted for an actual entry according to law, a failure to make such provision is a complete answer to the position that no entry was required. The language employed does not reserve any authority in the commissioners of the sinking fund, which sanctions a revocation of the grant otherwise than by a re-entry, as the condition expressly provides, and as the law requires, even if such a power could be conferred under any circumstances.

When the grantees took title it is fair to assume that they would never have subjected themselves to the expense and burden imposed except upon a settled conviction that they became seized of an existing title from the grantors.

It follows that the action t.o enforce the right of re-entry should have been brought by and in the name of the city of

The acts of the commissioners of the sinking' fund cancel-O ing so much of the grant to the heirs of Mary Clarke as embraced the land under water in front of the lands and premises of the appellant were therefore of no avail; conferred no title and were not an exercise of governmental function within the scope of its powers authorized by law.

It is urged that the grant from the city under which the defendants claim was not a conveyance, but a lease with a perpetual rent reserved by the deed. That the grant last made was an exercise of an ownership inconsistent with the nature of the estate hi the heirs of Mary .Clarke; that when opposed to the plaintiff’s grant it was a nultity, and was avoided thereby, and no rent having been paid there was a breach of the conditions contained in the grant, and the grantees and those claiming under them were simply tenants at will, and to determine this tenancy no formal entry was required, and the grant was terminated and ended by the feoffment made by the city to the plaintiff. We are unable to see how a grantor could revoke a grant without a formal entry, and without any notice to the grantee. As already is apparent, such entry was essential, and the position taken does not rest upon any valid legal ground. Conceding, however, that the principle laid down can be invoked in any such case, or that it is well founded, the answer to the position, is: First. That the conveyance is not a lease but a grant. It contains no words of demise, but it grants, bargams, sells, aliens, releases, conveys and confirms, and expressly provides that an entry is essential to render the same null and void. Second. There was no direct proof that the rent was not paid. The proceedings of the commissioners of the sinking fund are relied upon as well as the recital in the grant of the city to the plaintiff, that the plaintiff has paid the arrears of rent, for this purpose. These were but

If the defendants, as grantees of the city, can be regarded as taking no title whatever under the grant, then they have a complete defense by reason of an uninterrupted possession by themselves, and by those under whom they acquired title of the upland of over twenty years before suit brought under a claim of title. There is no ground for the assumption that by reason of the relations existing between the grantors and the grantees, that there could be no adverse possession. The question whether an adverse possession could exist in favor of the original grantees against an entry of the grantors for a breach of the condition of the grant, is quite different from that between the grantees and an entire stranger to such grantees. There is a distinction between an adverse possession to bar an addition and one to defeat a deed for champerty. In the former case, according to the statute of limitations, the plaintiff, his ancestor, predecessor, or grantee, must be seized or possessed within twenty years before the commencement of the action (Code, §§78 and 79), and the action must be commenced within one year after the making of an entry and within twenty years from the time when the right to make such entry accrued. (Id., § 80.) If the condition in the grant of the city,- under which the defendants claim, was subsequent, then, as we have seen, the defendants had a complete defense, independent of the statute of limitations. But even if it was otherwise, it would, at least, be questionable whether the statute would not commence to run from the time that the city had information that the grantees had no title to the upland. But, supposing that it was a condition precedent, and no estate was conveyed by the grant of the city, its right to enter and maintain the action became complete, and the' possession of the grantees claiming title under an instrument began at the very moment the grant was executed.

The bar of the statute is therefore far stronger as to a stranger than against the city. In fact, when the grant was made to the Clarke heirs in 1837, they took possession of the land, as the testimony shows, and began to fill up the lots, and have continued to possess and exercise acts of ownership over the same ever since. They acquired the right from the city by reason of their alleged title to the upland. This title was hostile in its inception to the title of the plaintiffs. To constitute an adverse possession, an entry under color or claim of title is sufficient, although it turns out afterwards that the title was in another. (Northrop v. Wright, 7 Hill, 476 .) It is not necessary that there should be a rightful title, and only a color or claim of title is required, and if the entry is under even a color of title, the possession will be adverse, however groundless the title. (Sands v. Hughes, 53 N. Y., 296 , and cases cited.) Here the claim was under a specific title to the upland, with proof sufficient to author-. ize a conclusion of possession of over twenty years by the grantor of the defendants, the Clarke heirs, and the defendants themselves. This was sufficient to bar an entry, and to

It is claimed that the evidence of the plaintiff shows that, at the time of the purchase by him of the upland, the same was vacant and unoccupied. The answer to this position is, that the testimony by no means establishes this fact, and the evidence upon the whole shows that immediately after the grant of 1837, contractors employed by the grantees commenced work, and the same was continued for some time. As the case stood, there was sufficient to warrant the conclusion that the defendants and their grantees took and held possession continuously since 1837.

If the plaintiffs had claimed that there was any question of dispute in this respect, they should have requested the judge on the trial to submit the same to the jury, which was not done.. In view of all the facts, the statute of limitations was, I think, a complete defense to the plaintiff’s action.

There is another difficulty in the way of sustaining the plaintiff’s title to the lots in question which cannot be overcome. At the- time when the water grant was made to the Clarke heirs or devisees, and the proof shows as we have seen, and it must be assumed that they were in possession of the upland. The title conveyed to them was based upon this assumption, and no grant would have been made unless this important fact existed. If such was the case, then from the' time of the grant to the Clarke heirs in 1837, until the recovery of a judgment in 1856, and another in 1857, under which the plaintiff was put in possession of the two upland lots, the devisees of Clarke were in possession of the upland lots, claiming to hold adversely. The statute (1 R. S., 739, § 147) declares that “ every grant of lands shall be absolutely void if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor.”

The deed from the Master in chancery to Suydam being

This has relation to mortgages in terms, and which are put on record as such, and not to a conveyance absolute on its face. But even if any ground exists for claiming that the deed from Suydam to Broadhead was a mortgage, the deed from Broadhead to Towle was not a mortgage, nor in the nature of a mortgage, and the most which can be claimed for it is, that it was a conveyance by the mortgagor to the mortgagee, which it is clear was not within the section last cited. It would be an evasion and a virtual repeal of § 147, to hold that these conveyances were not within its terms, and entirely defeat the object which was intended by the law-makers to keep the title and possession in harmony and to prohibit a conveyance of the one unless the other accompanied it.

The water grant to Towle, which was executed in 1859, and under which the plaintiff claims, was also void for champerty as against the defendant Remsen, who had received a conveyance of the lots in 1844, and with his tenants claimed to hold adversely. The question as to the effect of such a conveyance is fully considered in Sands v. Hughes (supra), and further comment is not required.

I do not understand that the distinct point is taken by the appellant’s counsel that the plaintiff stands in the position of

Assuming, however, that the point is now raised, we are unable to discover that the plaintiff can maintain this action upon any such ground. He is not a grantee of the demised premises of the original grantor; nor an assignee of the demise, within the provisions of the statute referred to, which was designed to apply to leases which passed and were transferred by actual assignment or grant from the original lessor to a third person. No assignment of the grant has ever been made. On the contrary, the original grant has been repudiated and attempted to be set at naught, as void and of no effect, by the original grantors, and the grant under which the plaintiff claims was contrary to and in direct opposition to the prior grant.

To entitle an assignee of a lessor to the benefit of an assignment of a lease, the assignment must be absolute, full, and unconditional. The assignee of a lessee is only liable for rent to the lessor when the entire term is transferred to the assignee. (Davis v. Morris, 36 N. Y., 569 , 575; Van Rensselaer v. Gallup, 5 Denio,. 460 ; Eaton v. Jaques, 2 Doug., 459 .) The same rule should apply to the assignee of a lessor, and unless he has title to all the rights of the lessee he cannot be said to occupy his place. The instrument under which the plaintiff claims, confers no such title, as it transferred no rights whatever under the first grant, but expressly assumed to disregard the same. Clearly, this is not such a transfer as the statute contemplates, and is not within its. provisions or its spirit. By section 23, above referred to, the grantees or assignees “shall have the same remedies by entry, action, distress, or otherwise, for the non-performance of any agreement contained in the lease so assigned, or for the recovery of rent, * * * as their grantor or lessor had or might have had if such reversion had remained in such

It is a complete answer to the right of the plaintiff to claim as grantee or assignee, that at a meeting of the commissioners of the sinking fund, it was resolved that the grant to Clarke and others of the premises in dispute under which the defendants claimed, ‘ ‘ be and the same hereby is canceled,” and subsequently a resolution was passed that the application of Towle for the land in question be granted, and a release of the same afterwards executed by the city authorities to him. These acts show already that the claim of the plaintiff does not rest upon his right, as assignee, or grantee, by virtue of the first grant, but upon the independent action of the city officials in direct and open hostility to the same, and he cannot therefore claim any right by virtue of the grant to the Clarke heirs. He cannot be allowed to insist that the first grant is operative for the purpose of defeating the defendant’s title, and at the same time that it was null and void. (See Sands v. Hughes, supra).

The case was properly disposed of upon the trial, and the judgment must be affirmed.

In 1837, the city of New York granted to certain persons the water lots on the west side of the city, now in controversy, upon the claims by them that they owned the adjacent upland lots. The grant was a lease in fee, reserving rent payable annually forever, and it contained a covenant to pay the rent, and a condition of re-entry for non-payment thereof. It also contained a covenant

Subsequently, prior to 1859, the plaintiff, -after a long• litigation established his title to the upland lots, and it appeared that the grantees in the above mentioned grant from the city did not, at the date of such grant, own such, lots. The plaintiff then applied to the city for a grant of the water lots, and the city canceled the prior grant and' granted the same lots to the plaintiff. The plaintiff claims, the premises in controversy by virtue of this grant to him and the defendants claim them by virtue of the prior grant,, and also upon the ground of adverse possession.

That the grantees in the first grant from the city did not, at the date of their grant own the upland lots, and that the-plaintiff has a regular claim of title to them has been too thoroughly adjudicated to be an open question. (Cochran v. Van Surlay, 20 Wend., 365 ; Towle v. Forney, 14 N. Y., 423 ; Suydam v. Williamson, 24 How. [U. S.], 427; Clarke

The first question to be considered is whether the condition above recited, contained in the first grant from the city, was a condition precedent or a condition subsequent. If it was a condition precedent the grant vested no title in the grantees.

No particular words are necessary to constitute a condition precedent or subsequent. Whether a condition in a grant shall be held to be one or the other depends upon the intention of the parties, and that intention is to be sought in the language used, construed and interpreted in the light of all the circumstances surrounding the execution of the grant. (4 Kent Com., 125; 2 Wash, on Real Estate [3 ed.], 5; Barruso v. Madan, 2 John., 148 ; Finlay v. King's Lessee, 3 Peters, 374; Jones v. Barkley, 2 , Doug., 691; Doe v. Scudamore, 2 Bos. and Pull., 295.) It is not always easy to determine whether a condition is precedent or subsequent. One general rule will however solve most cases : If the thing conditioned is to exist or happen before the estate is to vest, the condition is precedent; if after, it is subsequent.

I think it was clearly intended that the estate should not vest unless the grantees owned the upland lots.

It had always been the practice and policy of the State and of the city to grant such water lots to the owners of the adjacent upland lots. (Act of May 5, 1786; 1 Jones and Varick, 328-332; act of March 24, 1801; 1 Kent and Rad., 297-9; act of April 3, 1807; 1 R. S., 208; chap. 58, Laws of 1826; chap. 182, Laws of 1837; chap. 268, Laws of 1846; chap. 283, Laws of 1850; chap. 285, Laws of 1852; Hoffman’s Estates and Rights of the Corporation of New York, 180, 186; Ledyard v. Ten Eyck, 36 Barb., 102 , 125; People v. Canal Appraisers, 33 N. Y., 461 , 466.)

It must be supposed that the city intended to conform to this practice and policy, and respect the rights of the adjacent upland owners, and that hence the condition was inserted. There could have been no purpose served in vesting the estate and providing for its forfeiture upon the subsequent

The evident sense and meaning of the parties was that, if the grantees did not own the upland lots, they were to take nothing by the grant. The real thing conditioned was that they were the owners of such lots. It is true that it is said that, if it should “ thereafter, appear ” that they were not such owners, the grant was to be void. But appear how— how made to appear and to whom ? The deed provided for no act to be subsequently done by either party. The city was not required to institute any proceedings to make the absence of title appear before it could claim a forfeiture, and

If the conclusion thus reached is correct, the plaintiff’s title to the lands covered by his grant from the city is perfect, unless the claim of the defendants that they have title by adverse possession is well founded, and that claim must now be considered.

This suit was commenced in February, 1860, and hence the adverse possession must have commenced as early as February, 1840, and continued for twenty years thereafter. How what were the facts as to adverse possession? These lots were not enclosed prior to 1849, and it does not appear that any buildings were put upon them prior to that date, or that any wharves were built upon them, or that they were even cultivated. Prior to 1849, they were never actually occupied or possessed. The defendant Remsen took his deed of the lots in 1844, and he testified that he never, prior to 1849, occupied them, and all the possession he had he characterized in his evidence, as follows: He went on to the lots many times, and no one attacked his possession, or said he had not possession, and that was all he did. Such facts do not constitute such a possession of unenclosed vacant lots as will answer the requirements of the statute. The only other facts are these: The parties claiming under the first grant from the city, some time in 1837, commenced filling in the

A claimant of a lot may cover it with earth, or may improve it by cutting down the timber thereon, or by grading it or plowing it. While he is thus engaged in the work, he may be said to be in possession. But when he has finished the Avork, leaving the lot uninclosed and having no other possession of it, he cannot be said to be holding adversely. The lot is then vacant and the possession follows or goes Avith the true title. Hence, upon the assumption that this is a case in which the defendants are so .situated that they could otherwise claim by adverse possession, the facts do not sustain the claim. It folloAvs, therefore, if the condition be treated as precedent, that the plaintiff was entitled to recover.

But if it be conceded that the condition is subsequent as claimed by the defendants, the same conclusion must be reached. At common law, no one can take advantage of the breach of a condition subsequent, except the grantee or his heirs. (Wash, on Real Prop., 417, 418 ; 2 id., 11; 1 Smith’s Lead. Cases, 136 ; notes to Dumpors’ Case; Nicoll v. The N. Y. & Erie R. R. Co., 12 N. Y. 121 , 131; Van Rensselaer v. Hays, 19 id., 68, 81; Van Rensselaer v. Ball, 19 id., 100, 104.) The right to claim a forfeiture and to re-enter for the breach cannot be aliened or transferred. But in 1540, by the statute (32 Henry VIII, chap. 34), this common-law rule was changed, so that in the case of a lease for life or years, the grantee of the reversion could, in his OAvn name, sue for the rent or enforce any forfeiture, or re-enter for breach of any condition. That statute was, at an early day

As above shown, the first grant from the city was a lease in fee. By virtue of the statutes above referred to, therefore, the city could assign all the covenants contained in the grant, and all its interest in the lease, and its assignee could, in his own name, enforce the covenants and re-enter for the breach of any of them, or “for any other cause of forfeiture.” No argument can make this plainer than the statute itself makes it. This plaintiff could have waived the forfeiture now insisted upon, and have sued for the rent, and he can enforce a forfeiture for the breach of any condition. The object of the statute was to entirely abrogate the common law rule in the cases mentioned, and to allow all the remedies to the assignee which the grantor had.

It appears to me, therefore, beyond question, that the decision below was wrong, and that the judgment should be reversed and new trial granted.

Church, Ch. J., and Rapallo, J., concur with Miller, J.; Allen and Andrews, JJ., concur in result. Folger, J., expresses no opinion upon the question of adverse possession or champerty, but concurs in result; Earl, J., dissents.

Judgment reversed.