
    Mary H. Graves et al., App’lts, v. John Deterling et al., Resp’ts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 3, 1890.)
    
    1. Deeds—Covenants—Conditions—Forfeiture.
    In 1847 one Lefferts entered into an agreement with Rosewell Graves, father of plaintiffs, to sell him a farm, at $350 per acre, and to convey the same to such parties and in such quantities as he should direct. Graves laid it out in blocks with one laid down on the map as “ Lefferts Park,” and conveyed all the lots by deeds subject to the payment of three dollars upon each section to Mr. Graves, who was “ constituted the trustee of the parties thereto, respectively, to recover the same for the purpose of regulating, fencing and improving ” said park, etc. On November 6, 1852, Lefferts conveyed said park to Biker and others as parties of the third part, and Graves united therein as party of the second part. The deed, besides the covenant for title, contained the following clause, “ and it is covenanted and agreed that the said parties of the third part, the survivor of them, his heirs or assigns, shall not at any time or times hereinafter use, follow or permit, or suffer any person to use or follow in or upon the said premises any noxious or offensive business, etc., * * * to the annoyance, prejudice or disturbance of any person or persons owning land or residing contiguous thereto, nor use the Said premises for any other purpose than as an ornamental park.” E Id, that this was a covenant and not a condition.
    2. Same.
    The whole title to the park and the contiguous lots passed from plaintiffs’ father in his lifetime, and they inherited no right to either, as the covenant was not made for their benefit or that of their ancestor, and they are not in a situation to ask that the park should be maintained or its desecration prevented.
    
      Appeal from a judgment of the general term of the supreme court, in the second judicial department, affirming a judgment entered upon the decision of the court after a trial at special term.
    This action was brought to procure a decree that the title to certain premises in the city of Brooklyn is in the plaintiffs, to require the defendants to surrender the possession thereof, and for other relief.
    In 1847 one Rem Lefferts owned about seventy-two acres of land in Brooklyn, known as the Clover Hill .Farm, which included the premises in question. During that year he entered into an agreement with ¡Rosewell Graves, the father of the plaintiffs, to sell him said tract for $350 an acre, and to convey the same to such parties, at such times and in such quantities as he should direct. Mr. Graves entered into possession, and caused a survey and map to be made representing the property as laid out into seventeen blocks, each consisting of several lots, except one, centrally located, and the subject of this action, which was laid down on the map as “ Lefferts Park.” Pursuant to said agreement, and prior to ¡¡November 6, 1852, Mr. Lefferts, under the direction of said Graves, conveyed, by express reference to such map, all of said tract, except the park, by sundry deeds to divers persons, subject to the payment on the 1st day of March in each year, forever thereafter, of the sum of three dollars upon each section so conveyed, “ such payment to be made to ” Mr. Graves, who, by the several conveyances, was “ constituted the trustee of the parties thereto, respectively, to receive the same for the purpose of regulating, fencing and improving ” said park, “ and of keeping the fences around the same in repair.”
    On the day last named said Lefferts and wife, as parties of the first part, executed and delivered to John 0. Riker and three others, as parties of the third part, a conveyance of said park, and Mr. Graves united therein as party of the second part. This tripartite deed, after reciting in substance the foregoing facts, stated that said Lefferts was desirous of carrying into effect his said agreement by conveying the remainder of the land, known as “Lefferts’ park,” and that said Graves, “ with the advice and consent of the owners and proprietors of the said sections * * * charged with the payment of said yearly sum of money,” had “ directed and appointed the parties of the third part to take a conveyance of ” the park, “which direction and appointment,” as the instrument further recited, “ the said party hereto of the second part doth hereby testify to by his signing and sealing this indenture.” ¡No reason, other than that thus stated, appears for making Mr. Graves a party to the deed, as he did not join in any part thereof except the recital. A grant followed in the ordinary form from the parties of the first to the parties of the third part, of the land known as “Lefferts’ park,” stating that it was “in consideration of the premises and of the sum of one dollar.” The habendum clause ran to the parties of the third part, “ the survivor of them and the heirs and assigns of such survivor, to their own proper use and benefit and behoof forever, as joint tenants and not as tenants in common, subject, nevertheless, to the rights and interests therein of the several ” owners of lots. Following this clause were covenants by Lefferts of seizin, right to convey, against incumbrances, warranty, for quiet enjoyment and further assurance.
    Immediately after these covenants was the following paragraph, which concluded the instrument: “And it is covenanted and agreed that the said parties of the third part, the survivor of them, his heirs or assigns, shall not at any time or times hereafter, use, follow or permit, or suffer any person to use or follow in or upon the said premises any noxious or offensive business of whatsoever name or description, and that they or any of them, shall not at any time or times, place, put or suffer to remain in or upon the said premises, or any part or parcel thereof, or of the appurtenances, any matter or thing whatsoever which may be noxious or offensive, or be to the annoyance, prejudice or disturbance of any person or persons owning lands or residing contiguous thereto, nor use the said premises for any other purpose than as an ornamental park.”
    On the 10th of January, 1854, said John 0. Biker and his asso-’ ciates conveyed the land in controversy to the “ Lefferts Park Association,” a corporation created by chap. 545 of the Laws of 1853. March 2, 1857, under the authority of chap. 23 of the Laws of 1857, said corporation mortgaged said premises for $20,000 and thereby raised money to improve the park. This mortgage was afterwards foreclosed, and on July 3, 1861, the land covered thereby was sold and conveyed by the sheriff of Kings county and since then, as the trial court found, it has passed by various conveyances to purchasers in good faith and for full value, who, after taking the advice of counsel, believed that they were obtaining a good title. One of them was compelled to accept the title as good by the order of this court. Adair v. Adair, 74 N. Y., 622.
    It appeared upon the trial that the lot owners did not pay the sum of three dollars annually upon each section, as provided in the original deeds from Lefferts.
    Neither the plaintiffs nor their father ever had the legal title to any part of the Clover Hill Farm, and after the date of the tripartite deed their father had no interest in any lot or section of the tract outside of the park, and, so far as appears, claimed no interest in the park itself. The trial court dismissed the complaint upon the ground, among others, that the plaintiffs had no right or interest upon which an action could be founded.
    
      M Countryman and J. Hampden Dougherty, for app’lts; David Barnett, for resp’ts.
    
      
       Affirming 3 N. Y. State Rep. 128.
    
   Yaw, J.

In 1847 the equitable title to the Clover Hill Farm was in Bosewell Graves by virtue of his contract for the purchase thereof with Bern Lefferts, who thereupon held the legal title in trust for the purchaser. Stoddard v. Whiting, 46 N. Y., 627, 632.

On the 6th of November, 1852, by various conveyances made by Lefferts at the request of Graves, both the legal and equitable title to the entire tract, except the park, had passed to the several grantees, each of whom had acquired an easement in the park for the benefit of his lot. When the park itself was conveyed, neither Lefferts nor Graves had any beneficial interest therein, except a right in the nature of a reversion in case all of the easements should be extinguished, because neither owned any of the adjacent land for the benefit of which the park was created. All that they had to convey, therefore, was the naked title to support the easements and the possibility that by a surrender or abandonment of the easements, which had deprived the park of all market value, the right to beneficial ownership would be restored. These facts have a material bearing upon the construction to be given to the tripartite deed, which is claimed by the plaintiffs to contain a condition subsequent, involving, upon the breach thereof, a common law forfeiture. Whether the provision in question was a condition or a covenant depends upon the intention of the parties, and the slight value of the interest conveyed makes it improbable that a forfeiture was in contemplation. 4 Kent Com., 129, 132; Bishop on Contracts, § 418.

While conditions subsequent can be imposed without the use of technical words, as they are not favored by law, they must be clearly expressed and if it is doubtful whether a clause is a covenant or a condition the courts will so construe it, if possible, as to avoid a forfeiture. Craig v. Wells, 11 N. Y., 315; Parmelee v. Oswego & Syracuse R. R. Co., 6 id., 74, 79; Woodruff v. Woodruff, 44 N. J. Eq., 349.

Even where the habendum clause of a deed contained the following stipulation, to wit: “ provided always and these presents are upon this express condition that the aforesaid premises shall not, nor shall any part thereof or any building or buildings thereon erected or to be erected, be at any time hereafter used or occupied as a tavern or public house of any kind, ” it was held that as the intention might be sought for in the other words of the instrument and by reference to the surrounding circumstances, said provision was simply a covenant running with the land for the benefit of the adjoining estate belonging to the grantor. Post v. Weil, 115 N. Y., 361; 26 N. Y. State Rep., 131.

The deed under consideration in Avery v. N. Y. C. & H. R. R. R. Co., 106 N. Y., 142; 8 N. Y. State Rep., 612, provided that it was ‘‘ upon the express condition that the said railroad company * '* * shall at all times maintain an opening into the premises hereby conveyed opposite to the Exchange Hotel, so called, for the convenient access of passengers and their baggage.” The court held that the language used was for the benefit of the hotel property and was not meant to create a. condition subsequent, but was intended to be an agreement or covenant running with the land, providing for a right of way so as to enhance the value of the hotel property.

See also, as illustrating the subject, Clark v. Martin, 49 Pa. St., 289, 297; Stanley v. Colt, 5 Wall., 119 ; Countryman v. Deck, 13 Abb. N. C., 110; Ayling v. Kramer, 133 Mass., 12; Barrie v. Smith, 47 Mich., 130.

The provision in question is not a part of the habendum clause, where conditions are usually found in deeds, but it follows the covenants for title. While this is by no means controlling, it has a significance not to be overlooked, as the instrument was evidently drawn by a skillful conveyancer, who was well acquainted with both the forms and technical terms in common use by experienced draftsmen of deeds. The absence of technical language appropriate although not essential to create a condition, is also significant, because for time out of mind conditions have, usually been preceded by such "words as, proviso, ita quad and svh conditions, or their modern equivalents.

The parties introduce the provision by saying, “it is covenanted and agreed,” and thus expressly call it a covenant. . This alone, however, would not make it a covenant, as that which is termed a covenant may be a condition, and that which is termed a condition may be a covenant. Post v. Weil, supra, 370. But it has an important bearing upon the intention of the parties, because technical terms in a conveyance are presumed to have been used with their accustomed meaning, unless the circumstances and the context indicate a different intent.

There is no provision for a forfeiture or re-entry, nor anything from -which it can fairly be inferred that the continuance of the estate is to depend upon the supposed condition, yet this is regarded as essential in order to create a condition. Lyon v. Hersey, 103 N. Y., 264, 270; 3 N. State Rep., 80; Craig v. Wells, 11 N. Y., 315, 320.

. The grant is to the parties of the third part, their survivor, his heirs and assigns, to their own proper use and benefit and behoof, forever, subject to the rights of the lot owners, but not subject to any right reserved or condition imposed by the grantors. After various covenants binding upon the grantors, the provision under consideration follows, binding only upon the grantees. Independent of its location, form and the want of apt words, we think that its nature, object and function show that the parties intended it for a covenant and not for a condition. It is promissory, not conditional, in its character and meaning. The language used is appropriate to create a covenant running with the land, but not to attach a condition to the grant, or to make the existence of the estate granted dependent upon the observance thereof. The words are used by the grantees, not by the grantors. They do not grant upon condition, but accept with a promise, made not for the benefit of the grantors, but of those to whom easements had previously been conveyed by the grantors. The restriction, as the recitals of the deed show, is for the benefit of the adjoining property, rather than for the personal benefit of the grantors and their heirs by way of forfeiture or reversion. In fine, every earmark and every presumption supports the theory of a covenant and is opposed to the theory of a condition.

But the plaintiffs claim that even if the provision is a covenant they are still entitled to some relief, because as it is insisted the easements have been abandoned and the covenant violated. ' The weakness of this position is that the covenant was not made for their oenefit, or for the benefit of their anpestor. If the owner óf a dominant lot, who had not abandoned his right to the park, were here asking the preventive remedies of the court, a different question would be presented. The plaintiffs, however, áre hot in a situation to ask that the park should be maintained or its desecration prevented. The whole title to the park and the, contiguous lots passed from their father in his lifetime and they inherited no right to either. As they have title 'neither tó the park, nor to any land for the benefit of which the park was created, they have no foundation upon which to base an action.

The judgment should be affirmed, with costs.

All concur, except Brown, J., hot sitting.  