p. 204burial of the dead, and three dollars for each and every grave opening, until ■all the land described in this deed, or such part of it as may remain after the satisfaction of an existing mortgage thereon, shall be sold for cemetery purposes only; and the said party of the first part, his assigns, heirs, or legatees, shall be entitled to the grass, wood, timber, and other produce of the soil of all parts of said land which may remain unsold, in conformity to. the conditions of this deed, until all such land shall be sold in lots as aforesaid and have interments therein. And the said party of the second part hereby agrees with the said party of the first part that no lot of four hundred square feet shall be sold for less than eighty dollars, or in proportions for more or less land, unless the trustees shall deem a less sum than forty dollars per lot sufficient for improving the ground, and for other purposes than the purchase -money; and it is further agreed between the parties to this instrument that no interments shall be made in that part of the land hereby conveyed lying in the town of New Utrecht until all that part of the land lying in Graves-end shall have been sold arid interments made therein; and it is further agreed that in case of the non-fulfillment by the party of the second part of any of the promises on which this conveyance is given, the right of soil of all lots without interments shall revert to the party of the first part, his heirs, ” etc. Const. N. Y. art. 1, provides as follows: “Sec. 12. All feudal tenures of every description, with all their incidents, are declared to be abolished; saving, however, all rents and services certain which at any time heretofore have been lawfully created or reserved. See. 13. All lands within this state are declared to be allodial, so that, subject only to liability of escheat, the entire and absolute property is vested in the owners, according to the nature of their respective estates. Sec. 14. No lease or grant of agricultural land, for ■a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid. Sec. 15. All fines, quarter sales, or other like restraints upon alienation, reserved in any grant of land, hereafter to be made, shall be void. ”
Thomas E. Pearsall, for plaintiff. George W. Wingate, for defendant.
The covenant to pay the grantor at the rate of $40 a lot of 400 square feet for all lots sold is valid. In the case of Bennett v. Culver, decided by me at special term, I held that the deed carried a present fee, and yet was of opinion that this covenant was not invalid. It is in no sense a restriction upon alienation, for the whole deed shows that not only did both parties contemplate a sale of the land in cemetery lots, but it was only by-such sale that the grantor could obtain pay for the lands granted. In fact the covenant in this regard is a mere extension of credit for the purchase money to the grantee until it has been able to realize the money by a sale; tout the decision made by me was reversed by the general term and by the ■court of appeals. The latter court held ( 97 N. Y. 250 ) that the deed was merely an executory agreement, under which the grantee, upon complying with its covenants, could either sell or itself acquire title. This disposes of ■any question as to the matter.
The provisions of the constitution (sections 12, 14, art. 1) relate to feudal tenures and grants of land. The principle of the common law that avoided covenants for payment of a portion of the purchase money on a sale of land or other restraint upon its alienation proceeded on the theory that the grantor had no reversionary interest in the land after the grant of the fee. In a lease such provisions are unquestionably valid. De Peyster v. Michael, 6 N. Y. 46S. Under the construction of the deed adopted by the court of appeals, the grantors had far more than a reversion. They were not divested of either title or possession until compliance with the terms of the covenant. The covenant is absolute to pay at the rate of $40 a lot. It may be that the grantors are not interested in so much of the covenant as forbids sales at a
p. 205less price than $80 per lot. However that may be, the defendant must pay the stipulated sum on a sale, at whatever price it may sell for. If it cannot realize sufficient to pay the grantors, it must not sell. The covenant to pay $3 for each and every grave opening, I think, should not be construed to-include grave openings on lots sold, but only cases where single graves are sold, as distinguished from lots. I have very grave doubts whether such a provision, if construed to apply to private lots, would be valid. It haa been held by this court (Barnard, P. J.) that a by-law of a cemetery requiring monumental work to be done by designated workmen was void. There is no provision that any such provision or restriction should be inserted in the sales made by the cemetery. The deedx provides that the payments prescribed shall be made until all the lands are sold for cemetery purposes. Therefore, when all the lots are sold, payments for grave openingswouid cease, even though interments would continue long afterwards. This shows that this payment was not to be made for interments in private lots. As already said, the defendant has no monopoly of grave digging in the cemetery. It is unreasonable to suppose that it was to pay, when it might not. do the work, or receive any pay or fee. 1 think the clause is well confined, to the case of the sale of single graves. Judgment for plaintiff, with costs in accordance with this opinion.