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 *Page 321 upon request of the city to build certain wharves and streets along and through the premises granted, and it was also agreed and declared that "these presents and the estate hereby granted are upon this express condition, that if, at any time hereafter, it shall appear that the said parties of the second part were not, at the time of the date of these presents, seized of a good, sure, absolute, and indefensible estate of inheritance in fee simple of, in, and to the lands and premises on the easterly side of the line of high water, and adjoining to the water lot and ground under water hereby conveyed, or so intended to be, or if the said parties of the second part, their heirs, executors, administrators or assigns, shall make default in the performance of any or either of the covenants above contained on their part and behalf to be observed, performed, fulfilled, and kept, then, and in every such case, these presents and every article, claim, and thing herein contained, shall be absolutely null and void, and the said parties of the first part, and their successors, shall and may forthwith, thereupon, enter into and act upon the said premises hereby granted and shall thereafter be seized of the said premises."
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. VanSurlay, 20 Wend., 365; Towle v. Forney, 14 N.Y., 423;Suydam v. Williamson, 24 How. [U.S.], 427; Clarke *Page 322 v. Davenport, 1 BOSW., 96; affirmed in this court. Williamson v. Moore, decided in this court, April Term, 1862.)
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 Wn. 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 *Page 323 failure of the condition. It is said that a condition subsequent was intended because the grantees were expected, and might be required, to make improvements upon the premises, and could not claim any compensation for such improvements if the condition were precedent, and could if it were subsequent. But the grantees took the risks of their assertion and claim of title to the upland lots, and they asked for and took the title to the granted premises on condition that they owned such lots. They required no stipulation for compensation for any improvements in case of forfeiture, and they agreed to forfeit, and that the city might re-enter and repossess the premises. When the city should take possession for breach of the condition, it would take the premises with all the improvements put upon them, and could take them in no other way. The city could have re-entered without action if the premises were vacant, and declare the forfeiture, or, if the premises were possessed, it could have enforced the forfeiture by action of ejectment. It would have had no occasion to resort to a court of equity to regain possession, and even if it could have had, it would not have been a case where such a court could release against forfeiture, or impose as a condition of the forfeiture what was not stipulated in the grant, that compensation should be made for the improvements. Hence, I am unable to perceive how the defendants are in any better position as to their improvements upon the water lots if this be held to be a condition subsequent, rather than precedent.
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 *Page 324 it was not required to appear in any court. The fact that the grantees did not have title existed, and hence, in a broad sense, always appeared; but certainly, if one person in all the world knew the fact, it would not be disputed that it appeared to some one. It cannot be supposed that the parties meant such an appearance should be the thing conditioned. What they intended to condition was the fact of title, and how that fact appeared, or when it appeared, was of no moment; the city protected itself by the condition. They undoubtedly intended that the grantees should take possession and hold the premises until the fact that they did not own the upland lots became known to the city, and the city, on account thereof, claimed the forfeiture, but such an intention is entirely consistent with a condition precedent.
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. Now 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 *Page 325 water lots with earth taken from the upland lots, and there was more or less filling (how much and how continuous the work was does not appear) until 1846. It does not appear that anything was done upon the lots, or that there was any occupancy or possession of them of any kind from 1846 to 1849. All these facts fall far short of making a case of adverse possession. (Corning v. TroyIron and Nail Factory, 44 N.Y., 577; Miller v. Downing,54 N Y, 631; Wheeler v. Spinola, 54 N.Y., 377; 2 R.S., 294, §§ 10, 12; old Code of Procedure, §§ 83, 85.)
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 work, 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 with 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 follows, 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 own name, sue for the rent or enforce any forfeiture, or re-enter for breach of any condition. That statute was, at an early day *Page 326 (1788), substantially re-enacted in this State. (2 Jones Var., 184.) Bnt it did not apply to leases in fee and the statute (chap. 98 of the Laws of 1805) applied the same rule to such leases (see authorities last cited), and the law in this State has since been as it is now, embodied in the Revised Statutes. (1 R.S., 698, §§ 23, 24, 25.) Section 23 provides that "the grantees of any demised lands, tenements, rents or other hereditaments, or of the reversion thereof, the assignees of the lessor of any demise, and the heirs and personal representatives of the lessor, grantee, or assignee, 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 any rent, or for the doing of any waste or other cause of forfeiture, as their grantor or lessor had, or might have had, if such reversion had remained in such lessor or grantor;" and, by section 25, these provisions were made applicable to leases in fee.
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. *Page 327