[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 449
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 450
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 451 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 453
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 454 In 1847 the equitable title to the Clover Hill farm was in Rosewell Graves by virtue of his contract for the purchase thereof with Rem Lefferts, who thereupon held the title in trust for the purchaser. (Stoddard v. Whiting, 47 N.Y. 627, 632.) On the 6th of November, 1852, by various conveyances made by Lefferts at the request of Graves, both the legal and equitable title to the entire tract, except the park, had passed to the several grantees, each of whom had acquired an easement in the park for the benefit of his lot. When the park itself was conveyed, neither Lefferts nor Graves had any beneficial interest therein, except a right in the nature of a reversion in case all of the easements should be extinguished, because neither of them owned any of the adjacent land for the benefit of which the park was created. All that they had to convey, therefore, was the naked title to support the easements and the possibility that by a surrender or abandonment of the easements, which had deprived the park of all market value, the right to beneficial ownership would be restored. These facts have a material bearing upon the construction to be placed upon the tripartite deed, which is claimed by the plaintiff to contain a condition subsequent, involving, upon the breach thereof, a common-law forfeiture. Whether the provision in question was a condition or a covenant depends upon the intention of the parties, and the slight value of the interest conveyed makes it improbable that a forfeiture was in contemplation. (4 Kent's Comm. 129, 132; Bishop on Cont. § 418.)
While conditions subsequent can be imposed without the use of technical words, as they are not favored by law, they must be clearly expressed, and, if it is doubtful whether a clause is a covenant or a condition, the courts will so construe it, if possible, as to avoid a forfeiture. (Craig v. Wells, 11 N.Y. 315; Parmelee v. O. S.R.R. Co., 6 id. 74, 79; Woodruff v.Woodruff, 44 N.J. Eq. 349.) *Page 456
Even where the habendum clause of a deed contained the following stipulation, to-wit: "Provided always, and these presents are upon this express condition, that the aforesaid premises shall not, nor shall any part thereof, or any building or buildings thereon erected or to be erected, be at any time hereafter used or occupied as a tavern or public house of any kind," it was held that as the intention might be sought for in the other words of the instrument and by reference to the surrounding circumstances, said provision was simply a covenant running with the land for the benefit of the adjoining estate belonging to the grantor. (Post v. Weil, 115 N.Y. 361.)
The deed under consideration in Avery v. N.Y.C. H.R.R.R.Co. (106 N.Y. 142), provided that it was "upon the express condition that the said railroad company * * * shall, at all times, maintain an opening into the premises hereby conveyed opposite to the Exchange Hotel, so called, for the convenient access of passengers and their baggage." The court held that the language used was for the benefit of the hotel property and was not meant to create a condition subsequent, but was intended to be an agreement or covenant running with the land, providing for a right of way so as to enhance the value of the hotel property.
See also, as illustrating the subject, Clark v. Martin (49 Penn. St. 289, 297); Stanley v. Colt (5 Wall. 119);Countryman v. Deck (13 Abb. [N.C.] 110); Ayling v. Kramer (133 Mass. 12); Barrie v. Smith (47 Mich. 130).
The provision in question is not a part of the habendum clause, where conditions are usually found in deeds, but it follows the covenants for title. While this is by no means controlling, it has a significance not to be overlooked, as the instrument was evidently drawn by a skilled conveyancer, who was well acquainted with both the forms and technical terms in common use by experienced draftsmen of deeds. The absence of technical language appropriate, although not essential, to create a condition, is also significant, because, for time out of mind, conditions have usually been preceded by *Page 457 such words as proviso, ita quod and sub conditione, or their modern equivalents.
The parties introduce the provision by saying "it is covenanted and agreed," and thus expressly call it a covenant. This alone, however, would not make it a covenant, as that which is termed a covenant may be a condition and that which is termed a condition may be a covenant (Post v. Weil, supra, 370); but it has an important bearing upon the intention of the parties, because technical terms in a conveyance are presumed to have been used with their accustomed meaning, unless the circumstances and context indicate a different intent.
There is no provision for a forfeiture or re-entry, nor anything from which it can fairly be inferred that the continuance of the estate is to depend upon the supposed condition, yet this is regarded as essential in order to create a condition. (Lyon v. Hersey, 103 N.Y. 264, 270; Craig v.Wells, 11 id. 315, 320.)
The grant is to the parties of the third part, their survivor, his heirs and assigns, "to their own proper use and benefit and behoof, forever," subject to the rights of the lot owners, but not subject to any right reserved, or condition imposed, by the grantors. After various covenants binding upon the grantors, the provision under consideration follows, binding only upon the grantees. Independent of its location, form and the want of apt words, we think that its nature, object and function show that the parties intended it for a covenant, and not for a condition. It is promissory, not conditional, in its character and meaning. The language used is appropriate to create a covenant running with the land, but not to attach a condition to the grant, or to make the existence of the estate granted dependent upon the observance thereof. The words are used by the grantees not by the grantors. They do not grant upon condition, but accept with a promise, made not for the benefit of the grantors but of those to whom easements had previously been conveyed by the grantors. The restriction, as the recitals of the deed show, is for the benefit of the *Page 458 adjoining property, rather than for the personal benefit of the grantors and their heirs, by way of forfeiture or reversion. In fine, every ear-mark and every presumption supports the theory of a covenant, and is opposed to the theory of a condition.
But the plaintiffs claim that even if the provision is a covenant they are still entitled to some relief, because, as it is insisted, the easements have been abandoned and the covenant violated. The weakness of this position is that the covenant was not made for their benefit, or for the benefit of their ancestor. If the owner of a dominant lot, who had not abandoned his right to the park, were here asking the preventive remedies of the court, a different question would be presented. The plaintiffs, however, are not in a situation to ask that the park should be maintained or its desecration prevented. The whole title to the park and the contiguous lots passed from their father in his lifetime, and they inherited no right to either. As they have title neither to the park nor to any land for the benefit of which the park was created, they have no foundation upon which to base an action.
The judgment should be affirmed, with costs.
All concur, except BROWN, J., not sitting.
Judgment affirmed.