Southwick v. New York Christian Missionary Society

Spring, J.:

In 1861 Laura Selleck conveyed the premises in controversy to the trustees of the Methodist Protestant Church of Fredonia, and the granting part of the conveyance contained the following: “ The above-described land being designed for church purposes. It is understood and agreed that the seats therein shall be forever free for the use of any and all persons to occupy in the capacity of worship. But if the seats of the church to be erected thereon or any other church thereon shall be rented or sold then the said above-described premises shall revert to said party of the first part or her heirs.”

The grantor intended that the premises conveyed were to be devoted to church purposes, and that the church edifice, which was soon erected, was to he free to any and all persons who attended it for the purpose of worship; and in the event that this main object of the grant was defeated and disregarded the title of the grantees, or their successors in title, was to revert' to the grantor, or her heirs at law, at their election. The title of the premises conveyed was absolutely vested in the grantees, subject only to be forfeited by a breach of the condition quoted; and the language employed, taken as a whole, constituted a condition subsequent. (Upington v. Corrigan, 151 N. Y. 143, 154; Plumb v. Tubbs, 41 id. 442; Munro v. Syracuse, L. S. & N. R. R. Co., 200 id. 224; Gibert v. Peteler, 38 id. 165; Cowell v. Springs Co., 100 U. S. 55; Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y. 121; Osgood v. Abbott, 58 Maine, 73, 78 et seq.j 13 Current Law, 1288; Woodworth v. Payne, 74 N. Y. 196.)

The authorities are uniform that conditions subsequent are not favored, because a forfeiture of an estate in fee follows their breach. If, however, the language is plain and explicit, creating such a condition, it will be enforced.

As was said in Munro v. Syracuse, L. S. & N. R. R. Co. (200 N. Y. supra, at p. 230), after stating the general practice as to such condition: “When, however, the intention of the parties is so clearly expressed as to show that the enjoyment of the estate created by the deed was intended to depend upon the performance of a certain stipulation, it is held a condition and not a covenant.”

In the present conveyance the purpose of the grantor is clear- and unmistakable, and it is equally clear that there has been a violation of that condition. The court has found, and the evidence sustains the findings, that in 1906 the church society then occupying the edifice erected on the premises leased the same to a union free school district; the pews were removed, a partition erected through the middle of the audience room and the building has been devoted since that time to school purposes, and no religious services have been held therein and the pews have never been replaced. The condition is like any other clause in a deed not repugnant to the purpose of the grant, and it should be enforced. (74 N. Y. 196, supra.)

When the clause in question was considered on a former appeal (Woodworth v. Payne, 74 N. Y. 196) the church property had been conveyed to an individual in payment of a debt of the society, but the edifice was still used for religious worship and the pews were free. It was, consequently, held that there was no breach of the condition. The court in considering the question now involved used this language (at p. 198): “ If by any means the object of the grantor was perverted from the purpose she had in view, or the church used or appropriated it for any secular or irreligious purpose, then a forfeiture would follow the act, and the land revert back to the heirs of the grantor.” And again (at p. 200): “ The fee of the land and the use of the pews are placed on a different footing. The former may be transferred, because such transfer is not forbidden and is not inconsistent with either the purpose or the condition of the conveyance. If the pews are disposed of, the condition is violated, the grant becomes void, and the land reverts as provided.”

It would seem, therefore, as if the Court of Appeals in construing the clause in controversy determined in that case that it was a condition subsequent, and if the edifice was devoted to other than religious purposes and the pews removed, that such acts would constitute a breach of the condition, and' the land would revert to the hens of the grantor, if they elected to re-enter.

Second. At the time of the breach of the condition mentioned the grantor was dead, and the plaintiff and three others were her only heirs at law, and by quitclaim deeds the three, aside from the plaintiff, attempted to transfer their interest in the premises conveyed to the plaintiff.

The rule seems to be a general one that the interest of the grantor and her heirs at law is what has been termed “ the possibility of reverter; ” or, in other words, a mere personal right, and not technically an estate in the land. If this grantor or her heirs at law did not elect to avail themselves of the right of re-entry and to assert a forfeiture of the conveyance by reason of the breach of the condition the title remained unimpaired in the grantee. In following out this rule it has been held that the right is not assignable. (Fowler v. Coates, 201 N. Y. 257; Upington v. Corrigan, 151 id. 143, 153 et seq.; Towle v. Remsen, 70 id. 303, 312; Nicoll v. N. Y. & Erie R. R. Co., 12 id. 121; 2 Reeves Real Prop. § 721 et seq.)

The philosophy of this rule seems to be that the right does not pass by descent, but the heir at law represents the original grantor,' and, consequently, a stranger to the title is not her representative. As was said in Fowler v. Coates (201 N. Y. supra, at p. 263): “ The right to re-enter and to insist upon a forfeiture of the estate upon breach of such a condition can only be reserved for the benefit of the grantor and his heirs, and an assignee, as a stranger to the title, cannot take advantage of it.”

And in Fonda v. Sage (46 Barb. 109) the court used this language (at p. 122): “It seems to be well settled, upon

abundant authority, that a condition in a conveyance can- only be reserved for the benefit of the grantor of the estate and his heirs, and that no stranger can take advantage of the breach of a condition.”

The inhibition against the assignability of the right of entry for the breach of a condition of this kind was early recognized in England, and for the reason that ‘ ‘ under color thereof pretended titles might be granted to great men, whereby right might be trodden down and the weak oppressed.” (Coke Litt. 214a.)

The plaintiff in this action is not a stranger, but the grandchild and an heir at law of Laura Selleck, the grantor. She had the right to re-enter or to commence this action, which is tantamount to a re-entry. (Plumb v. Tubbs, 41 N. Y. 442, 450.) By so doing she elected to declare the condition forfeited. Before commencing the action she acquired the interest of the. other representatives of the grantor. While the general rule, as already adverted to, is stated in explicit language, I find no case where the doctrine was laid down in which the assignment was by one heir at law to another. It seems to me that the facts in this case establish an exception, to this general rule, which rests upon the proposition that strangers cannot be representatives of one responsible for a condition subsequent.

If all the heirs at law assigned to a stranger so that their right to declare the title forfeited is gone, there is no one to represent the grantor. The right partakes of the characteristics of the title to land, passing by descent, only the exercise of election is confined to those who inherit. If, however, there is one heir remaining, he can as to his specific interest elect to determine the title in the grantees for violation of the condition. If the other heirs, instead of uniting with the plaintiff, prefer to transfer their rights to her there is no infraction of the principle adverted to which debars a stranger from taking advantage of the breach.

Even if the conveyance by these heirs at' law to the plaintiff did extinguish their right of re-entry for condition broken, it does not affect the plaintiff’s right to recover the premises in their entirety. The right of re-entry is indivisible, and if there is any one to represent the original grantor that person can avail himself of the breach, and if there are other heirs capable of enjoying the benefit with such person the re-entry will be for the benefit of all. If for any reason the other heirs have lost their right, then the re-entry will be available solely to the heir at law who has not parted with the right.

As was said in Bouvier v. Baltimore & N. Y. R. R. Co. (67 N. J. L. 281; 60 L. R. A. 750, 767): “A right of entry for condition broken is inherently indivisible. An entry by one of two or more joint grantors would inure to the benefit of all, and it is obvious that an attempt to sever the joint right before entry would be ineffectual.”

I think, therefore, the judgment should be affirmed.

All concurred, except McLennan, P. J., and Foote, J., who dissented in an opinion by Foote, J.