The deeds to Wilcox, in my opinion, conveyed the absolute fee of the premises described subject to a condition subsequent.
No particular form of words is necessary to create a condition subsequent, but the cases hold it must be clearly expressed. (Lyon v. Hersey, 103 N.Y. 264; Upington v. Corrigan,151 N.Y. 143.)
The premises in question were to be used for flowage purposes, and the deeds provide if not so used then the grantor, his heirs and assigns, "shall buy back the land hereby conveyed at such price as may be agreed upon between the parties to these presents." A clause then follows for umpires to fix price if parties fail to agree.
It is a little difficult to comprehend how grantors can "buy back" land unless title passed under their conveyance.
I vote for affirmance.
PARKER, Ch. J., O'BRIEN and WERNER, JJ., concur with HAIGHT, J.; GRAY and CULLEN, JJ., concur with BARTLETT, J.
Order reversed, etc. *Page 150