(dissenting):
This is a submitted controversy, involving the question whether title to certain premises owned by plaintiffs and tendered to the defendant pursuant to a contract of sale, is a good and marketable title.
The property in question was derived by plaintiffs by mesne conveyances from one Gouverneur Morris, who in 1848 was the owner of a tract of land in Morrisania, in the town of West Farms, county of Westchester, State of New York, which he cut up into lots and sold to various purchasers, inserting in each deed, among other conditions not material to this decision, the following:
“ But this indenture is upon the express conditions that no ardent or intoxicating drinks shall be manufactured, or bought or sold on the premises hereby conveyed to be used as a beverage, *601* * *. And in case the said conditions are not faithfully performed and kept the estate in the said premises of the said grantee, or party of the second part, his heirs or assigns, or any of them shall cease and determine, and the said premises shall immediately revert to the grantor or party of the first part, and his heirs or assigns.”
The property in question was first deeded by Gouverneur Morris to one William Russell Collins and by Collins to one William Orpin by deed dated October 7, 1848. In 1849 Gouverneur Morris and many of his grantees entered into an agreement releasing, canceling and discharging the restrictive condition quoted above. To this agreement both Collins and Orpin were parties, at which time Orpin owned the property in question. Orpin thereafter and on November 27, 1851, conveyed the property by a deed which did not contain the aforesaid condition, and said condition has not appeared in any subsequent deed affecting the premises.
The plaintiffs contend that Morris, Collins and Orpin were the only ones who had a right in the conditional clause. They overlook the principle that words stated in terms of a condition may create also a covenant giving rights therein to the various other grantees to whom Gouverneur Morris sold lots, when he divided up the tract of land according to a.definite plan. The same words may create a condition subsequent with a right of re-entry and may also give rights to adjoining grantees, provided the intention to give such rights is manifested. In Ingersoll Engineering & Construction Co. v. Crocker (228 Fed. 844) the owner of a tract of land subdivided it into blocks and lots, a large number of which he sold and conveyed by deeds containing a condition subsequent as follows: “ It is made an express condition of this conveyance that said premises shall never be occupied or used by or in any trade, or business such as if launched or started in localities in cities already thickly populated and devoted to first class residences are held to be nuisances; and upon violation of this condition, the said premises, and the title thereof, with all improvements thereon, shall revert to party of the first part, their heirs, representatives and assigns.” The Circuit Court of Appeals for the Sixth Circuit held that these words created a condition subsequent with a right of re-entry in the grantor and also gave to the grantees of the lots created by the subdivision the right to enforce the condition as to any other lot in their vicinity and that this was so whether the original grantor had disposed of all his interest or not. As to this provision the court, by Denison, C. J., said: “No one doubts the prima facie validity of this stipulation, or that it would at once be effective as a condition subsequent, a breach of which *602would give the right of re-entry; and obviously such a condition would affect the title in the hands of all subsequent grantees, without regard to whether the condition was repeated in the deeds in the intervening chain of title. * * * By these deeds, the adjacent and nearby lot owners acquired rights to benefits from the condition imposed upon block 1.”
In Post v. Weil (115 N. Y. 361) the language of the agreement was “ upon the special condition that no part of the land or buildings thereon should ever be used or occupied as a tavern.” In construing these words, Judge Gray, speaking for the court, said: “ Although the words of the clause in question are apt to describe a condition subsequent reserved by a grantor, we are in nowise obliged to take them literally. In the consideration of what, by the use of these words, was imported into the conveyance, we are at liberty to affix that meaning to them, which the general view of the instrument and of the situation of the parties makes manifest. Whether they created a condition, or a covenant, must depend upon what was the intention of the parties; for covenants and conditions may be created by the same words. In order that a covenant shall be read from the words of an instrument they need not be precise, nor technical, nor in any particular form. In Bacon’s Abridgement (Covenant A) it is said: ‘ The law does not seem to have appropriated any set form of words which are absolutely necessary to be made use of in creating a covenant.’ In Sheppard’s Touchstone (161, 162) it is said: ‘ There need not be any formal words as “covenant,” “promise” and the like to make a covenant on which to ground an action of covenant; for a covenant may be had by any other words.’ Chancellor Kent, in his Commentaries (vol. 4, 132), in speaking of whether a clause in a deed shall be taken to create a covenant or a condition, says: ' Whether the words amount to a condition or a limitation, or a covenant, may be matter of construction depending on the contract. The intention of the party to the instrument, when clearly ascertained, is of controlling efficacy; though conditions and limitations are not readily to be raised by mere inference and argument.’ ” (Italics not in original.)
As clearly indicating the intention of the parties in the original subdivision of the tract, we find from the release in the record that the conditions inserted in the deed were put in at the special instance and request of the various grantees in said deeds, and each of the parties released and discharged all of the others from the rights which each had to enforce the condition as against the other lots granted in the general scheme of improvement. The language of the release in that respect reads as follows: “ And the said land *603was afterwards laid out into lots or parcels, streets, avenues, etc., and- the said Gouverneur Morris did convey the said respective lots or parcels of land by Deeds bearing date the eighth day of September, one thousand eight hundred and forty eight, and, Whereas, at the special instance and request of the grantees in said Deeds named there were inserted among other things, in the said deeds the following clauses and conditions, viz: 1. 'That no ardent or intoxicating drinks shall be manufactured or bought or sold upon the premises hereby conveyed to be used as a beverage.’ 2nd. ' And that no dwelling house shall be erected on the said premises of less value than Three hundred dollars ’ in default of which, * * * Deeds the estate in the said premises of the grantee or party of the second part in said deeds named, his heirs or assigns, should cease and determine and the said premises should revert to the said Gouverneur Morris, his heirs and assigns, forever, as by reference to said deeds may more fully appear. And Whereas the said parties hereto of the second part the respective owners of the said lots and parcels of land by virtue of the said conveyances from said Gouverneur Morris and divers mesne conveyances, have requested the said Gouverneur Morris to release the said lots and parcels of land from the said above recited clauses and conditions; Now Therefore This Indenture Witnesseth: That the said Gouverneur Morris for and in consideration of the premises and the request of the said parties of the second part and of One Dollar, to him. in hand paid by them the receipt whereof is hereby acknowledged doth hereby for himself, his heirs, executors and administrators waive, and renounce all claim, right, benefit, and advantage of what nature or kind soever arising from or which might arise from the conditions above recited in said Deeds and in each and all of them, and do‘release and forever discharge said lands and each and every lot or parcel thereof from all such claim, right, benefit, or advantage which the said Morris his heirs, executors, or administrators now have or might have in said recited conditions and doth release and discharge the said parties of the second part and each of them and their heirs and assigns and the heirs and assigns of each of them from all right of reversion claim benefit advantage of every name and kind soever in said lands or any parcel thereof which he the said Gouverneur Morris has or might have of from or by reason of the above recited conditions. And the said several persons subscribing this instrument and constituting said parties of the second part do hereby and in consideration of the premises and of One Dollar to them in hand paid the receipt whereof is hereby acknowledged each for himself and herself, his and her heirs and assigns waive and renounce all right, claim *604and demand under or arising upon or growing out of said recited conditions in said deeds, and in each and all of them. And. they do hereby each for himself and herself, his and her heirs and assigns release and forever discharge each and all the others and the heirs and assigns of each and all the others from all claim, benefit, advantage, of every name and kind, which they or either of them or their heirs or assigns or the heirs or assigns of either of them have or might havé of from or by reason of said above recited conditions in said deed or in any of them. [Italics not in original.] And they do each for himself or herself, his or her heirs and assigns confirm to each and every of the others and the heirs and assigns of each and every of the others the particular lot or parcel of said land the title to which is in him or her vested and declare the same to belong to him or her his or her heirs and assigns discharged and exonerated from said above recited conditions contained in the deed thereof and they do mutually and each for himself or herself his or her heirs and assigns covenant with each and every of the others and the heirs and assigns of each and every of them that neither he or she or his or her heirs or assigns shall or will make, set up or have any claim or demand upon any one of the persons so constituting said parties of the second part or upon the heirs or assigns of anyone of them under or arising upon or growing out of said above recited conditions and that from all & any such claim and demand they and each of them, their heirs and assigns and the heirs and assigns of each of them shall be forever and at all times estopped and barred.”
The fact also of there being one tract which was subdivided in accordance with a general scheme with uniform conditions as to the use thereof for the common benefit of the grantees, which in this case consisted primarily of protecting the residence tract against places where intoxicating liquor was sold, and providing that no house should be built which would cost less than the sum named, brings the case within the principle stated in Silberman v. Uhrlaub (116 App. Div. 869, 873), where this court, by Milleb, J., said: “ In the case at bar if the owners of the tract in 1885 in contemplation of its division into small parcels deemed it wise to restrict their use to residence purposes, and for that purpose adopted a general scheme of improvement and united in mutual covenants upon partitioning the property, subsequent purchasers with knowledge of the scheme had a right to rely upon the observance of the restriction by every other purchaser, irrespective of whether such restriction was referred to in the deed to him and of whether such other purchaser happened to derive title from the same grantor, because, conceding such to have been the uniform scheme adopted, *605it would be absurd to hold that a grantee could not restrain a violation on the part of his immediate neighbor who derived title from the same grantor, although he could "enjoin precisely the same act on the part of the owner of a parcel more remotely located -obtained from a different grantor.”
In Korn v. Campbell (192 N. Y. 490) Werner, J., writing for the court, said: “ There has been fnuch judicial writing upon the subject of restrictive covenants * * *. For the particular purposes of this case such covenants may be broadly divided into three classes. In the first class may be placed those which are entered into with the design to carry out a general scheme for the improvement or development of real property. This class embraces all the various plans, generally denominated in the English cases as building schemes, under which an owner of a large plot or tract of land divides it into building lots to be sold to different purchasers for separate occupancy, by deeds which contain uniform covenants restricting the use which the several grantees may make of their premises. In such cases the covenant is enforceable by any grantee as against any other upon the theory that there is a mutuality of covenant and consideration which binds each, and gives to each the appropriate remedy. Such covenants are entered into by the grantees for their mutual protection and benefit, and the consideration therefor lies in the fact that the diminution in the value of a lot burdened with restrictions is partly or wholly offset by the enhancement in its value due to similar restrictions upon all the other' lots in the same tract.”
In the submission there is no finding of fact that all of the grantees have joined in said agreement of release. Any who have not so joined would not be precluded from the right to enforce the condition as a covenant, if the occasion should arise. Under these circumstances, the title is not such a title as the defendant can be forced to accept. As was said in McPherson v. Smith (49 Hun, 254), by Macomber, J.: “A title open to a reasonable doubt is not a marketable one, and the court cannot make it one by passing upon an objection, depending on a disputed question of fact, or a doubtful question of law, in the absence of the party in whom the outstanding right is vested.”
In Weinberg v. Sanders (204 App. Div. 409) the emphasis of the objection was placed upon the aspect of the restriction considered as a condition, for the reason that in that case there had been no release of the condition, considered as a condition.
It follows that there should be judgment for the defendant, but without' costs as provided in the submission.
Judgment ordered for plaintiffs. Settle order on notice.