Upington v. Corrigan — 53 N.Y. St. Rep. 310

Majority

p. 310

Marie T. Upington, Plff, v. Michael A. Corrigan et al., Def’ts.

(Supreme Court, General Term, First Department,

Filed May 12, 1893.)

Headnote

1. Judicial notice—Reasonable time to build church.

The court may take judicial notice oí the fact that 29 years is an unreasonable time to take in which to commence building a church, unless some sufficient explanation is given, and evidence of that fact is not necessary.

2. Deed—Condition subsequent.

Where a conveyance is made on condition that the grantee shall erect a church on the premises, the condition is intended to follow the estate granted into whosoever hands it may come, and the premises are not relieved of such condition by the death of the grantee, although his heirs, executors and assigns are not mentioned in the condition.

Exceptions ordered to be heard in the first instance at the general term in an action of ejectment.

James M. Hunt, for the motion ; T. G. Barry, opposed.

This is an action of ejectment commenced in July or August, 1891, to recover possession of certain premises for breach of conditions subsequent contained in the deed by which plaintiff’s ancestor conveyed the same. The facts conceded are as follows-: One Mary McDonough Davey, being the owner of the premises in question, conveyed the same to the Reverend John Hughes for nominal consideration, by a full covenant warranty deed, on the 19th of September, 1862. This deed, in addition to the usual covenants, contained the following:

“To have and to hold the above granted, bargained and described premises, with the appurtenances, unto thesaid party of the second part, his heirs and assigns, to his and their own proper use, benefit and behoof forever, upon the conditions following, to wit: That said party of the second part shall consecrate, or cause to be consecrated, the said property, for the purpose of erecting a church building, and shall within a reasonable time erect, or cause to be erected, such building. And reservation is hereby made by said party of the first part to appropriate, at her option, either of the ground under such building or outside thereof and within the boundaries of the property hereby conveyed, a sufficient place of interment or burial for her late husband, now deceased, family, and self, and to erect a suitable tablet or monument to their memory.”

The defendant Corrigan having succeeded to the title of Hughes, and being in possession of the premises, and none of the condi

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tions of the deed of Davey having been complied with, this action was brought-to recover possession of the same by the plaintiff, who, with the defendant Pooler, are the only living heirs at law of Mary Davey, upon the ground that, there having been a breach of the conditions upon which the grant was made, such grant was forfeited. Upon the trial, these facts appearing, the plaintiff rested, and the court was asked to dismiss the complaint upon the grounds: First, that, as there was no allegation of forfeiture during the lifetime of Hughes, and as the condition in the deed did not name his heirs, executors, administrators or assigns, the condition could not be broken after his death; and, second, the condition not being binding upon the defendant Corrigan, no right of action for forfeiture because of the breach of condition existed against him; and, third, that the burden was on the plaintiff to prove that a reasonable time had elapsed in which to build a church, having in view the situation of the premises. These motions the court appears to have denied, but directed a verdict for the defendant upon the ground that there was no sufficient evidence to show that a reasonable time had elapsed with reference to the situation of the property and within which to build a church; and that the question of reasonable time being one of law, the court must have before it some evidence upon which to base a ruling more than the mere lapse of time. To this ruling the counsel for the plaintiff duly excepted, and this is the exception presented upon this motion.

Grant in 1862, no compliance with conditions in 1891, 29 years having elapsed, must evidence be offered to show that 29 years is an unreasonable time to take in which to construct a building? There are a large number of facts of which the court always takes judicial notice, they being those which form the common knowledge- of mankind, and which everybody takes into consideration in the ordinary affairs of life. Suppose that the condition had been that the grantee should go from Hew York to Albany within a reasonable time, and 29 years had elapsed and he had not gone, and no explanation was given of the delay, could it be argued for a moment that it would be necessary to offer evidence to show that there had been time enough to have made the journey, which we all know could have been made thousands of times during the period which had elapsed? . This is substantially the case at bar, and the court may take judicial notice of the fact, which is common knowledge, that 29 years is an unreasonable time within which to commence to build a church, unless some sufficient explanation is given.

In drawing the answer of the defendant it was thought necessary to allege as new matter the grounds upon which it was to be claimed that the delay was not unreasonable, and this new matter, we think, he should have -been called upon to prove, as for the purposes of the trial it was denied. After hearing the proofs, it could be determined whether a delay which upon its face appeared unreasonable had been excused. It is claimed, however, that the condition called for the performance of Archbishop Hughes only and, he being dead, the property was relieved of the condition’

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and we are referred to the case of Emerson v. Simpson, 43 N. H.,. 475, as an authority to sustain this proposition. That case turned upon the particular language of the condition, and seems to have-but little bearing upon the case at bar. It was the evident intention in the case at bar that the condition should be annexed to-an d follow the estate granted into whosoever hands it might come, otherwise the plain object of the grant would be defeated. Such was the rule held in the case of Langley v. Chapin, 134 Mass., 82 and recognized in Rose v. Hawley, 118 N. Y., 502 ; 30 St. Rep., 6 , and is certainly in consonance with the plain intention of the-grantor. We are of the opinion, therefore, that-the court erred in directing a verdict for the defendant; and the exceptions should be sustained, and a new trial ordered, with costs of this application, to plaintiff to abide final event.

Follett and Barrett, JJ., concur.