(dissenting). I dissent. The defendant agreed with the grantors in the deed to pay them one-half of the proceeds in case of a sale to another railroad company, — an event which both parties evidently contemplated might probably be done at some future time. Judging from the allegations of the complaint, this right of the grantors to half the proceeds of a sale was a valuable one; but by a cunning, and that which seems to me an indefensible, proceeding, if the construction thereon placed by the majority opinion is the correct one, the defendant has accomplished indirectly, for its own benefit, what the parties intended should only be done directly, and for the equal benefit of both parties. If this is not practically and in legal effect a sale, then the defendant, by this sharp practice, has entirely defeated its power to make any sale for a period of 999 years, and thus cheated the grantors or their successors in interest out of any right or interest in the premises during all that long period of time. The practical difference between a lease for such a long time and a sale is too dim and gauzy, and should not be tolerated, because, in my opinion, it is one of those attempted multiform methods of practicing fraud under the guise of legal formality which should not receive judicial sanction. The defendant could not practically do any more to effect a sale for a period of 999 years than to make the lease which it has done, and which, in my opinion, is an unconscionable attempt upon its part to evade the provisions in the deed which required it to pay the grantors one-half of the proceeds in case of a sale to another railroad company.
“A lease is properly a conveyance of any lands or tenements in consideration of rent or other annual recompense made for life, for years, or at will.” 1 Wood, Landl. & T. § 71 (75). “Independently of the idea of a contract, a lease also possesses the property of passing an interest, and thence pai takes of the nature of an estate.” 1 Taylor, Landl. & T. § 11. “A lease is a conveyance by the owner of an estate to another of a portion of his interest therein for a term less than his own, in consideration of a certain annual or stated rent or other recompense.” Gray v. La Fayette Co., 65 Wis. 567, 27 N. W. *80311. A devise of the rents and profits of land is equivalent to a devise of the land itself, and will convey the legal as well as the beneficial interest therein. 1 Jarman, Wills, 740 (797); Thompson v. Schenck, 16 Ind. 194. So this lease conveyed the legal as well as the beneficial interest in the premises for 999 years, and its practical effect is equivalent to a sale thereof.
In the case of Watson v. King, 73 Hun, 340, 26 N. Y. Supp. 177, the construction of a contract was under consideration which contained a provision that one-half “the avails of any sales hereafter made of the lands now unsold” should be equally divided between the parties, and it was construed by the court as including rents of the same land. And I think that disposal by the defendant of the right of way either by technical sale or term lease entitled the grantors or their successors in interest to one-half the proceeds thereof. I also think that any other construction imposes a great wrong upon the plaintiffs herein.