This action (ejectment) was begun April 13, 1896, to recover a farm in the possession of the defendant. There is no dispute about *288the facts. February 25, 1888,. Elisha H. Parish was the owner in fee of a farm containing about 114 acres situate in the town of Bergen, and on the date mentioned he, as party of the first part, and Arthur P, Rogers, the defendant, as party of the second part, executed a lease, under seal, by which Parish leased to Rogers, said farm “ for and during the term of the natural life of the party of the first part and of his wife, Cynthia Parish, from the'first day of April, 1888, which term will end when the natural life of Elisha H. and Cynthia Parish terminates and ends. And the said party of the second part, covenants that he will pay to the party of the first part for the use of said premises the yearly rent of three hundred dollars, to be paid quarterly every three months during said term, said rent to be paid to Elisha H. Parish during his lifetime, and after his death to the said Cynthia Parish, his widow, if she be still living, during her natural life.” .
• Under this lease the defendant took possession of the premises and now occupies them. March 14, 1889, Elisha H. Parish died leaving a last will and testament, executed July 25, 1888, duly pro-r bated March 18, 1889, by which he devised this farm to his son, the plaintiff, in fee.
It is conceded that the premises leased are agricultural lands and that Cynthia Parish is living. The first and principal question involved on this appeal is whether the lease is void under section 13 of article 1 of the Constitution of this State, which provides:
“ § 13, Ho lease or grant of agricultural land, for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid.”
It was held by -the court below, and it is urged on this appeal, that as the lease was for two lives in being at the date of its execution, and not in terms for more than twelve years, it is not violative ■ of the Constitution, because it may terminate within twelve years from the date of its execution by the death of both persons upon whose lives the term is limited.
This position is subversive of the spirit and purpose of the section of the Constitution above quoted. Before the adoption of the Constitution of 1846 it was the custom of the owners of large landed estates to grant perpetual leases, called leases in fee, reserving rent, which endured so long as the rent was paid,, and also leases reserv*289ing rent during the lives of two or more persons mentioned in the leases. The troubles between landlords and tenants under such leases in many counties of the State, immediately preceding the Constitutional Convention of 1846, culminating in what is known in the history of the State as the anti-rent war, was one of the principal reasons for balling that convention.
That it was the purpose of the convention to prohibit the granting thereafter of leases of agricultural lands, reserving rent, either in perpetuity or for lives, is, as I think, conclusively shown by the proceedings of that body. Among other committees appointed by the convention was Ho. 18, “ On the Creation and Division of Estates in Lands,” of which Judge Samuel Nelson was chairman, but owing to his absence during a large part of the session of the convention Judge Ira Harris became the acting chairman. This committee reported in favor of limiting leases of agricultural lands : to a period of ten years. Mr. Benjamin S. Brundage, of Steuben, who opposed, throughout the convention, any limitation upon the. right of landowners to lease their lands, moved to amend the section as reported by inserting after the word “years” the words “or, natural life of the grantee.” It would seem that the word “ grantee ” is a misprint for “ grantor,” for, in support of his proposed amendment, Mr. Brundage said : “ The right to dispose of one’s property during one’s own life was a right which was inalienable, and which he would not divest himself of or others.” (Debates Const. Conv. 1846 [Argus ed.], 804.) The Journal shows (pp. 1326, 1328) that the amendment proposed by Mr. Brundage was defeated by seventy-six votes against and five for it. At different times when the question was before the convention various amendments were offered that the term be limited to seven and to twenty-one years, but finally a term of twelve years was agreed upon. For an account of the proceedings on this subject see pages 681, 782, 802-805, 815 and 907 of the Argus edition of the Debates.
In the construction of constitutional and statutory provisions the mischief sought to be prevented should always be borne in mind, and the provision under consideration should be so construed as to prevent the mischief at which it was aimed. The mischief sought to be prevented was the creation of long terms by leases of agricul*290tural lands, reserving rent, which had been found by experience to be detrimental to the agricultural interests of all countries in which they had been permitted.
The evils arising from leases in fee and from leases for life were the subject of debates not only in the convention, but before it convened they had been discussed in executive messages, in the Legislature, and widely in the newspapers and pamphlets of the day. But in all the discussions the proposition was never advanced to abolish the right to lease agricultural' lands for a long term of years and preserve the right to lease such lands in fee or for lives. The state of affairs ■ existing at the, time a statute is passed or a Constitution is adopted must be taken into consideration when interpreting either. This provision has been in force for more than fifty years, and no case has been found raising the question that leases for lives, reserving rent, of agricultural lands were not within the section. In Van Rensselaer v. Dennison (35 N. Y. 393) it is assumed that leases in fee are prohibited by the Constitution.
When the Constitution was adopted estates in land were (1 R. S. 722, § 1) as they now are (Chap. 547, Laws of 1896, § 20) divided into estates of inheritance, estates for life, estates for years and estates at will, and by sufferance. This lease,, if valid, created a freehold estate in the grantee during his life (1 R. S. 722,, § 6; chap. 547, Laws of 1896, § 24), out of which estate rent was reserved, which was precisely what the section of the Constitution was designed to prevent.
Under the common law and under -our statutes estates for lives always have been, and now are, deemed superior to estates for years. It seems inconsistent to hold that the provision is limited in its application to leases for years of agricultural lands, and that it imposes no restriction upon leases for lives, out of which the evils arose - which the provision was designed to prevent. I am of the opinion that leases for lives of agricultural lands, reserving rent, are prohibited by the Constitution, and that the lease under which the defendant claims is Void.
It is urged that a person may waive a constitutional provision, or so conduct himself as to be estopped from asserting it. This is true when the provision simply relates to a private right, but it is not true when the provision is part of the public policy of the State *291In such a case the provision may be asserted, though it works a private wrong. A person cannot, by waiver or by acts which would usually raise an estoppel, validate a contract which- is declared to be void by the fundamental law on grounds of public policy, nor' can ■he estop his successor in interest from repudiating such a contract. In Clark v. Barnes (4 Wkly. Dig. 386, rev. 76 N. Y. 301) it was' held that the party to such a lease, executed under circumstances which made it very inequitable to rescind, might repudiate it, Clark was the owner in fee of a farm which was leased in 1841 for three, lives. Barnes was - in possession under the lease. Ah action was brought by. Clark to recover possession, and .Clark and Barnes entered into a written contract settling the action and canceling the life lease, in consideration of the execution of leases of the same farm to Barnes, one for’ eight years, expiring February 1, 1873, and another for twelve years, beginning February 1, 1873. The two leases were executed. Barnes occupied the farm under the first lease until the end of the term and began to occupy under the seond lease. Clark brought summary proceedings to recover possession upon the ground that the two' leases were to be construed together and were void. It was held at General Term that the leases were good for twelve years and void only for the excess, but this judgment was reversed by the Court of Appeals, which held that a lease of agricultural lands for a longer period than twelve years, by which rent was reserved, was absolutely void. In the cáse cited the lessee had surrendered a lease -for lives, in consideration of these leases for years; had occupied and improved the farm, but, nevertheless, it was held that the lease, being void under the Constitution, it could be repudiated by the lessor.
The judgment should be reversed and a new trial granted, with costs to abide the event.
Adams, J., concurred.
Judgment affirmed, with-costs. •