Parish v. Rogers

The precise question for determination, broadly stated, is whether the creation of estates for life in agricultural lands, with a reservation of rent, are prohibited by the constitution. In other words, whether the instrument of grant or lease creating such an estate is void ab initio. In ascertaining the true interpretation of this constitutional provision and in determining the extent or limits of its operation, we may be assisted in arriving at a just conclusion by a statement of certain general principles. In Settle v. Van Evrea, 49 N. Y. 280 , the court held that the restriction against certain judicial officers acting as referees did not apply to “commissioners of appeals,” because the clause in the constitution there under consideration did not, by its terms, literally include those officers, though the same reasons must have existed for including the commissioners in the prohibition which were applicable to the court of appeals proper. Allen, J., stated the true principle of interpretation to be observed in these words:

“It to meet exigencies and to prevent mischiefs it is allowable, sometimes, to depart from the strict letter of a law, and imply an intent not clearly expressed in the construction of ordinary statutes, which may be framed in haste, and with none of the formalities that attend the preparation and adoption of a state constitution, it would be dangerous in the extreme to extend the operation and effect of a written constitution*by construction beyond the fair scope of its terms, merely because a restricted and more literal interpretation might be inconvenient or impolitic, or because a case may be supposed to be, to some extent, within the reasons which led to the introduction of some particular provision plain and precise in its terms. That would be pro tanto to establish a new constitution, and do for the people what they have not done for themselves. The terms of the instrument being clear and free from doubt, and having a well-understood meaning and application, the better way is to stand upon the maxim ‘Ita lex scripta est,’ ana leave any supposed defect or omission to be remedied by the people or by legislation. * * * The prohibition is simple and direct, contained in a single paragraph, the terms of which are apposite, conveying a distinct and definite idea, and, if they are extended, it can only be done by conjecture as to the possible intent of the framers of the clause, and upon a theory as to some policy supposed to be shadowed forth. The effect of the prohibition cannot be enlarged by conjecture or implication.”

See, also, People v. Dayton, 55 N. Y. 367 , 375; Countryman v. Norton, 21 Hun, 17 , 19.

If a lease or grant of an estate for life is to be judicially declared to be one “for a longer period than twelve years,” and therefore obnoxious to the constitutional limitation, such adjudication must be founded, not upon the particular words or terms in which the pro

The learned judge (Spring, J.) who delivered the opinion in the court below well says that the instrument itself does not in express terms come within the prohibition of the constitution. The term may extend beyond the restricted period, or it may expire before that time. The provision curtails thg rights of owners of estates. It places a restriction upon the disposition of their property. And in order to make this curtailment—this restriction—effective, the instrument itself should clearly come within the pale of the inhibition. That the court cannot hold as matter of law that this instrument will extend for a longer period than 12 years. Its termination depends upon providential interposition, and not upon the volition of the parties, so there was no attempt to violate the constitutional interdict, as in some of the cases. Now, since the creation of life estates is not prohibited, the only effect the constitutional provision can have upon them is to limit their duration to a period beyond which they shall not extend. The decisions under the clause of the statute of frauds declaring void every parol agreement that by its terms is not to be performed within one year have some application to this case by way of analogy. Where the time of performance was made to depend upon the contingency of death, and though that did not in fact occur within 20 years, it was held not within the condemnation of the statute. Kent v. Kent, 62 N. Y. 560 . And a verbal contract to build and maintain a switch for plaintiff’s benefit, for shipping purposes, “so long as he may need it,” is not within the statute; nor is it a grant of “an estate for a term of more than one year in lands and tenements,” or a “contract for the sale or lease thereof for a longer term than one year,” within the Texas statute of frauds. Warner v. Railway Co., 164 U. S. 418 , 17 Sup. Ct. 147 . In the case cited. Gray, J., writes an elaborate opinion, reviewing many of the authorities. The principle upon which all these adjudications rest might well be invoked in support of the proposition that life estates do not come within the condemnation of a provision limiting the duration of estates for years; in other words, that the specification of a time certain does not prohibit in any manner the creation of estates for a time uncertain, and that such estates are valid, and continue in operation, until the happening of the contingency upon which they are made to depend, even though they should extend beyond the period limited. It is sufficient for the purposes of a decision, however,

Reference may properly be made to the proceedings and debates in the constitutional convention of 1846. Mr. Brundage, one of the delegates, moved to insert after “years” the words “or natural life of the grantee,” and made this observation: “The right to dispose of one’s property during one’s own life was a right which was inalienable, and which he would not divest himself or others.” The proposed amendment was negatived by a decisive vote,—76 to 4. It is difficult to comprehend what was the particular purpose of the amendment, or what were the reasons that actuated the delegates in refusing to adopt it. The effect of it would be to extend the duration of the estate beyond 12 years, if the lessee or grantee should so long survive. Was that the reason why the amendment was rejected, with the intention that the provision should stand as a limitation of all life estates, whether for that of the grantor or the grantee? Or was it rejected because its effect would be to prevent an owner of agricultural lands from creating an estate for his own life, and that the convention did not propose to do? Or, in other words, that the creation and duration of life estates should not be affected? That the convention should remain silent upon that subject? That legislation respecting chattels real must necessarily be construed to be applicable to freehold estates, either as prohibiting their creation, or as a limitation upon their duration?

This, I believe, is the first instance in the history of the law of an attempt by legislative act to limit the duration of an estate of freehold by a term of years. It is inconceivable that the convention should have intended to abrogate or limit freehold estates without making any mention of them in a provision impairing the free disposition of property. It should be observed here that Mr. Brundage’s remark is charged with ambiguity. He says he would not restrict the right of one to dispose of his property during his own life, and yet that was what he proposed to do by the amendment offered, for the effect of it would be to prevent the creation of an estate that would continue for the life of the creator. It is evident, however, that he did not understand that the original provision affected life estates' in any manner. In Stephens v. Reynolds, 6 N. Y. 454 , it was held that a lease for life conditioned that the lessee should occupy the land and support the lessor for life was not within the constitutional inhibition. In Parsell v. Stryker, 41 N. Y. 480 , there was a lease for life, with an agreement to work the premises on shares, and the court held that, as no rent, as such, was reserved, the lease was valid. It is true that the court was not called upon in those cases to decide that a life estate, with a reservation of rent or service, came within the cotidemnation of t«he constitution, as well as an estate for years,—since it was determined that there was no reservation of rent or service,—yet the opinions of - the judges indicate that it was their understanding that the constitution was intended to apply to estates for life; and the opinions of those eminent judges are entitled to much consideration, .and especially so as to -Ruggles, C.

Judgment affirmed, with costs.

WARD, J., concurs. FOLLETT, J., dissents with opinion, in which ADAMS, J., concurs.

On the 25th day of February, 1888, Elisha Parish was the owner of the premises described in the complaint. On that day he executed a lease to Rogers, the defendant, which was “for and during the term of the natural life of the party of the first part and his wife, Cynthia Parish, from the 1st day of April, 1888, which term will end when the natural life of Elisha H. and Cynthia Parish terminates and ends.” The inhibition of article 1, § 13, of the constitution is against the execution of a lease or grant of agricultural lands “for a longer period than twelve years.” The period mentioned in the lease may not be 12 months. From the terms of the instrument itself it cannot be demonstrated that it will carry to the lessee the right to occupy “for a period longer than twelve years.” However, if it be said that the lease was against the literal language of the constitutional provision, then it was void in its inception. That being so, the lessor and testator was the owner of the land at the time of the execution of his will and at the time of

This action—ejectment—was begun April 13, 1896, to recover a farm in the possession of the defendant. There is no dispute about the facts. February 25, 1888, Elisha H. Parish was the owner in fee. of a farm containing about 114 acres, situate in the town of Bergen, and on the date mentioned he, as party of the first part, and Arthur P. Rogers, the defendant, as party of the second part, executed a lease, under seal, by which Parish leased' to Rogers said farm “for and during the term of the natural life of the party of the first part and of Ms wife, Cynthia Parish, from the first day of April, 1888, which term will end when the natural life of Elisha H. and Cynthia Parish terminates and ends. And the said party of the second part covenants that he will pay to the party of the first part for the use of said premises the yearly rent of three hundred dollars, to be paid quarterly every three months during said term; said rent to be paid to Elisha H. Parish during his lifetime, and after his death to the said Cynthia Parish, his widow, if she be still living, during her natural life.” Tinder this lease the defendant took possession of the premises, and now occupies them. March 14, T889, Elisha H. Parish died, leaving a last will and testament, executed July 25, 1888, duly probated March 18, 1889, by which he devised this farm to his son, the plaintiff, in fee. It is conceded that the premises leased are agricultural lands, and that Cynthia Parish is living. The first and principal question involved on this appeal

“Sec. 13. No lease or grant of agricultural laud, for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid.”

It was held by the court below, and it is urged on this appeal, that as the lease was for two lives in being at the date of its execution, and not in terms for more than 12 years, it is not violative of the constitution, because it may terminate within 12 years from the date of its execution by the death of both persons upon whose lives the term is limited. This position is subversive of the spirit and purpose of the section of the constitution above quoted. Before the adoption of the constitution of 1846, it was the custom of the owners of large landed estates to grant perpetual leases, called “leases in fee,” reserving rent, which endured so long as the rent was paid, and also leases reserving rent during the lives of two or more persons mentioned in the leases. The trouble between landlords and tenants under such leases in many counties of the state, immediately preceding the constitutional convention of 1846. culminating in what is known in history of the state as the “anti-rent war,” was one of the principal reasons for calling that convention. That it was the purpose of the convention to prohibit the granting thereafter of leases of agricultural lands, reserving rent, either in perpetuity or for lives, is, as I think, conclusively shown by the proceedings of that body. Among other committees appointed by the convention was No. 18, “On the creation and division of estates in lands,” of which Judge Samuel Nelson was chairman, but, owing to his absence during a large part of the session of the convention, Judge Ira Harris became the acting chairman. This committee reported in favor of limiting leases of agricultural lands to a period of 10 years. Mr. Benjamin S. Brundage, of Steuben, who opposed, throughout the convention, any limitation upon the right of landowners to lease their lands, moved to amend the section as reported by inserting after the word “years” the words “or natural life of the grantee.” It would seem that the word “grantee” is a misprint for “grantor,” for in support of his proposed amendment Mr. Brundage said: “The right to dispose of one’s property during one’s own life was a right which was inalienable, and which he could not divest himself of or others.” Debates, Const. Conv. (1846; Argus Ed.) 804. The journal shows (pages 1326, 1328) that the amendment proposed by Mr. Brundage was defeated by 76 votes against and 5 for it. At different times when the question was before the convention various amendments were offered that the term be limited to 7 and to 21 years, but finally a term of 12 years was agreed upon. For an account of the proceedings on this subject, see pages 681, 782, 802 to 805, 815, and 907 of the Argus edition of Debates.

In the construction of constitutional and statutory provisions the mischief sought to be prevented should always be borne in mind, and the provision under consideration should be so construed as to prevent the mischief at which it was aimed. The mischief sought to be prevented was the creation of long terms by leases of agricultural

It is urged that a person may waive a constitutional provision, or so conduct himself as to be estopped from asserting it. This is true when the provision simply relates to a private right, but it is not true when the provision is part of the public policy of the state. In such a case the provision may be asserted though it works a private wrong. A' person cannot by waiver, or by acts which would usually raise an estoppel, validate a contract which is declared to be void by the fundamental law on grounds of public policy, nor can he estop his successor in interest from repudiating such a contract. In Clark v. Barnes, 4 N. Y. Wkly. Dig. 386, reversed in 76 N. Y. 301 , it was held that the party to such' a lease, executed under circumstances which made it very inequitable to rescind, might repudiate it. Clark was the owner in fee of a farm which was leased in 1841 for three lives. Barnes was in possession under the lease. An action was brought by Clark to recover possession, and Clark and Barnes entered into a written contract settling the action, and canceling the life lease, in consideration of the execution of leases of the same farm to Barnes,—one for eight years, expiring February 1, 1873, and another for twelve years, beginning February 1, 1873. The two leases

The judgment should be reversed, and a new trial granted, with costs to abide the event.

ADAMS, J., concurs.