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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 253 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 255
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 256 Both parties claim under James A. Bennett. It is conceded that the right of each depends upon the true construction of the paper above set out. As to that the courts have differed. We agree in the conclusion reached by the General Term. It accords with the well-settled rule that the construction of written instruments should be as near to the minds and apparent intent of the parties as possible (French v. Carhart, 1 N.Y. 96), and complies with the statutory declaration *Page 257 that, "In the construction of every instrument creating or conveying, or authorizing the creation or conveyance of, any estate or interest in lands, it shall be the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law." (1 R.S. 699, § 2, Edmonds' ed.)
It is plain, we think, that the sole object of the agreement was the creation and establishment of a cemetery, of which the grantor should be, in the language of the parties, "the first and only founder," and with that end in view its interpretation is not difficult. It is true there are, as the appellant's counsel contends, express and technical terms by which the fee is granted to the cemetery association, but on looking at the whole instrument we find that it was not the grantor's intention that it should be absolute, but merely conditional. In the first place its extent is so defined and restrained that no right of possession vests in the corporation until a sale according to the conditions of the agreement. They are not subsequent conditions, but upon their performance the grantee's right depends. Then there is the express mutual covenant not confined to the grantor, but running to him, his assigns, heirs or legatees, that they shall be entitled to the grass, wood, timber and other produce of the soil of all parts of the land which may remain unsold in conformity to those conditions. Another provision indicates the understanding of the parties as to the effect of the instrument. Although in a certain event the right of soil even is to revert to the grantor, his heirs, etc., so that it shall be added to the right of possession, it is declared that such reversion shall not prejudice the right of the cemetery to sell the land "in conformity to said premises according to the true intent of this conveyance."
Again the agreement for consideration is executory, depending entirely upon the actual sale of lots for interments, and accompanied by no personal obligation on the part of the grantees, except to account to the grantor and his assigns or heirs, every half year, at a fixed rate, below which they were not *Page 258 permitted to go, for the lots sold. No other consideration is to be paid, and by express agreement and as one of the conditions, the purchase-price is to be derived from the sale of the land and paid over to the grantor.
In the next place there is the explicit language of thehabendum clause defining the estate and the use for which the grantees shall have it, and so limiting it that the cemetery "shall have and hold" the lands granted only "in conformity to the premises" thereinbefore stated, and to which we have referred. So the quiet enjoyment which is covenanted for is declared to be subject and "in conformity to the same premises."
Nor is there any circumstance in the case which should induce the court to regard these conditions, or "premises" as they are styled, with disfavor, or refuse to give effect to the evident intention of the grantor as expressed, or even implied, in them. Whether we regard, therefore, his purpose in executing the instrument, or his express words, the legal estate in the cemetery must be deemed limited to such an interest only as would enable it to carry into effect his intention. So far this has not been done. No part of the property has been sold or used as a place for the burial of the dead, and going further, the learned counsel for the appellant declares that "the cemetery association has not attempted to sell it, nor to get possesion at all." The defendant has succeeded in doing both, but unlawfully, for his debtor had no interest in the property to which his judgments could attach, and consequently none which could be taken on execution.
As the decision of the court below is to that effect, it should be affirmed, and the plaintiffs have judgment absolute according to the stipulation.
All concur.
Order affirmed, and judgment accordingly. *Page 259