Bennett v. Culver

Baenaed, P. J.:

The deed or writing between James A. Bennett, plaintiffs’ father, and the Washington Cemetery did not take the lands in question from Bennett subject to a condition subsequent. Bennett did not thereby part either with the title or with the possession absolutely’. By the fair meaning of the instrument the Cemetery Association had the right to sell “for cemetery purposes only” the lands described in the paper. Until actual sale for such purpose, and until the payment of forty dollars for every lot of 400 square feet .so sold, and until actual interments were made, the grantor was entitled to possession of the land.

The grant is “ in conformity to the premises,” which are as above stated. The case, it seems to- me, does not, therefore, fall within Woodward v. Payne (74 N. Y., 196). There the title had absolutely passed but was subject to a reverter if free seats were not kept in a church. The Court of Appeals held«that a creditor of the church took by execution sale the right' to the land subject to keeping free seats in the church on the land. It was supposed that the purchaser would hire the land to a church with this condition. In this case the creditor claims to take land from the possession of the plaintiff, which he has the right to retain not only until it is sold for cemetery purposes, but until actual interments are made therein.

The case is not similar to Pierce v. Keator (70 N. Y., 419). There land- was sold to a railroad company. The grantor reserved the privilege of cutting the grass on the land unused by the track. The land when sold was subject to a mortgage. At the mortgage sale the railroad strip was reserved. It was held that the privilege reserved by the grantor did not go to the purchaser at the foreclosure sale.

The constitutional provision against fines, quarter sales and like restrictions upon alienation has no relevancy. The plaintiff has an estate in the lands which never passed tb the Cemetery Association. The Cemetery Association could not sell it except for a specific purpose, and could not get possession until that purpose was fixed and certain, by actual interment. Then our statute would perpetuate the use. The subsequent sale of the plot-is forbidden. (Chap. 419, Daws 1871.) From the facts proven-in the case upon the trial the Cemetery Association could not sell the land for other than cemetery purposes. A creditor can get by execution sale no greater right than the cemetery corporation had. The plaintiffs are entitled to the possession of the land until the land is sold for purposes of interment, and until actual interment and until payment of the price at the rate specified in the writing between plaintiff’s ancestor and the Cemetery Association.

The judgment should therefore be reversed and a new trial granted, costs to abide event. - \

Dykman, J., concurred; Cullen, J., not^sitting.

Judgment reversed and new trial granted, costs to abide event.