
    Jeremiah Towle, plaintiff and appellant, vs. Isaac C. Smith and Ichabod T. Williams, defendants and respondents.
    1. A condition, in a grant of land by the corporation of the city of New York, that the grant shall be void in case it shall at any time afterwards appear that the grantee was not seised of an estate in fee simple absolute to the eastward of the lands so granted, is a condition subsequent, and does not defeat the estate, unless proceedings are taken by the corporation for that puipose.
    2. Such a grant is subject to the condition contained in a grant of the same lands, from the state to the corporation of the city, that in every grant by the latter, the owner of the adjacent upland shall llave a preference.
    3. There is a marked distinction in the object of statutes which avoid a particular provision in an instrument, and -that of those which avoid a whole instrument on account of the illegality of the purpose of a part. In the former case, such provision is made void as a matter of policy as to it alone; in the latter, the whole instrument is looked upon as an engine of fraud or other violation of the statute, in which the valid and invalid parts arc inseparable.
    
      4. The statute making void grants of land held adversely, at the time, by another, does not make the whole instrument void. Only tliat part which violates the law becomes inoperative.
    
      i 6. The statute which makes the acceptance of a grant of lands held adversely a misdemeanor, does not invalidate a grant of other lands, in the same conveyance.
    6. The amendment of section 111 of the Code of Procedure, passed in 1862, allowing the grantee of lands held adversely to bring an action in the name of his grantor, against the party in possession, repeals, by implication, the statute making the taking of a grant of land held adversely, a misdemeanor; it seems.
    
    (Before Robertson, Ch. J., and Monell and Garvin, JJ.)
    Heard October 11, 1864;
    decided December 16, 1864.
    This is an action to recover a strip of land on the northerly side of Twenty-fifth street, in the city of New York, forty-nine fi?et four and a half inches wide, and extending from the Eleventh avenue, westerly, about three hundred feet to the harbor commission line. The plaintiff claims, under a grant from the corporation of New York, dated November 29th, 1859, purporting to grant a strip of this width from the high-water line, near the Tenth avenue, to the harbor commission line. The defendants claim, under a prior grant, made by the corporation to the children of Thomas B. Clark, dated March 31st, 1837. This grant comprised all the land from Twenty- ' sixth to Twenty-fifth streets, and below, and extended from the high-water line to the westerly side of the Eleventh avenue, with the right of toharfuge in front. Under this latter grant, the grantees therein, and their assigns, have possessed and enjoyed the granted premises ever since, have filled up the land, made the streets and wharf, and paid the taxes. On the trial, before a- justice of this court and a jury, the plaintiff’s evidence was directed chiefly to showing that he was the proprietor of two lots on the original shore, above high water, which he claimed were opposite to the premises granted to ■ him.
    At the close of the plaintiff’s testimony, the defendant moved that the complaint be dismissed; which motion was granted, and the plaintiff appealed,
    
      N. Dane Ellingwood, for the appellant.
    I. There was sufficient evidence of the plaintiff’s title to the lot in controversy in this suit to go to the jury.
    1. The plaintiff,.on the trial, produced evidence of ownership in himself of lots Nos. 117 and 118, irrespective of the judgment records in the suit of Towle v. Farney, and in the suit of Towle s. Woods, which were offered by him, and ruled out by the court.
    2. He also produced in evidence a grant from the corporation of the city of New York to himself, as the owner of lots Nos. 117 and 118 ; made in conformity with the proviso contained in the statute of 1807, (see Laws relative to the city of New York, Davies’ ed. p. 434, § 15,) which grant embraces the lot in controversy in this suit.
    
      II, The grant from the corporation to the heirs of Mary Clark, which was produced in evidence by the defendants on the cross-examination of a witness called on the part of the plaintiff, did not impair the plaintiff’s title as previously made out by him on the trial, inasmuch as the grant in question does not embrace the lot in controversy in this suit.
    III. But supposing that the grant to the heirs of Mary Clark had embraced the lot in controversy, such grant would not have impaired the plaintiff’s title as previously made out by him on the trial, notwithstanding that such grant was of prior date to the grant made by the corporation to the plaintiff ; because :
    1. The grant to the heirs of Mary Clark was made on a condition precedent, to wit, that at the time of the making of such grant, the grantees were the owners of lots Nos. 117 and 118. It having been shown, however, that they were not such owners, the grant was void at its inception.
    As no estate vested in the grantees, except on the condition that they, at the time of the making of such grant, were the owners of the said two lots, the estate in the lots in question remained in the grantors, who might, without re-entry, make a subsequent grant thereof, notwithstanding the previous grant to the heirs of Mary Clark.,
    
      D. Dudley Field, for the respondent.
    I. It has been already decided by this court, in Towle v. Palmer and Smith, December, 1863, that the grant, to the children of. Thomas B. Clarke, made by the city on the 31st of March, 1837, vested in the grantees an estate in fee simple, and that the condition respecting the ownership of the upland was a condition subsequent. The city has never entered for breach of the condition, and, therefore, the estate of the grantees remains undisturbed.
    II. While the grant to Clark’s children remained in force, a grant of the same premises to another vested no estate, legal or equitable, in the new grantee. This, also, was decided in Towle v. Palmer and Smith, (1 Rob. 437.)
    
      III. Though the grant to Towle included not only the lands covered by the grant to Clark’s children, but other lands beyond, and among these, the lots in controversy in this action, it did not operate to pass the title to these lots, for the following reasons :
    . 1. The lands embraced in the grant were in the possession of the grantees therein, adversely to all the world, when the second grant was made conveying in part the same lands. The statute makes the second grant void for this reason. The language of the act is that “ every grant of lands shall be absolutely void, if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of grantor.” (1 R. S. 739, § 147.) The grant thus made void by statute, cannot be bad in part and good in part. (See also 2 R. S. 691, § 5.) If any * * * person shall take any conveyance, &c. knowing * * * that the grantees are not in possession of such lands or tenements, he shall, upon conviction, be deemed guilty of a misdemeanor.” The plaintiff took the grant from the corporation, knowing that a large part of the property was adversely possessed. Hence, he cannot claim under it. (Co. Litt. C. 3, p. 347, 701. Hay v. Cumberland, 25 Barb. 594.) That the possession of Clarke’s children was adverse to the city, and all the world, see People v. Trinity Church, (22 N. Y. Rep. 44.)
    2. The first grant passed the wharf and wharfage, which would be entirely cut off if the second grant were to take effect.
    IV. The act of April, 1837, confirmed the grant previously made, and gave to the grantees therein an estate in the land under water, outside of the wharf. The corporation either took no title at all in the land under water, outside of the wharf, or, if the title passed by force of the statute to the corporation, it remained there but for an instant, and passed on to the previous grantees. This results from the language of the act of 1837, as well as from the language of the statute of uses and trusts. (1 R. S. 727, § 47.)
    The effect of the act of 1837 is very different from that of the previous acts.
   By the Court,

Robertson, Ch. J.

The defense in this case rests solely on a possesory title to the premises in question. The complaint rivers such possession by the defendants, which' the latter admit in their answer, but claim it to have been adverse to all the world for twenty years. Of course their right to dismiss the complaint depends solely upon the weakness of the plaintiff’s title. The plaintiff’s claim to such premises depends wholly upon a grant of them to him by the corporation of the city of New York, in the year 1859. Á strip of land to the eastward of the Eleventh avenue was also included in such grant, which had been previously granted to the heirs of Mrs. M. Clarke in the year 1837, by the same corporation. Such grantees entered into possession of the strip and held it at the time of the grant to the plaintiff. Such grant to the plaintiff was subject to a condition to be void in case it should at any time afterwards appear that he was not seized of an estate in fee simple absolute of the lands to the eastward of the lands so granted.

This court has held that a condition similar to that in the grant to the plaintiff was a condition subsequent, and did not defeat the estate unless proceedings were taken by the corporation for the purpose. (Towle v. Smith, December 5, 1863, Gen. Term., MS.) So that it was not necessary for the plaintiff to establish any title to land lying eastwardly from the premises in question.

The grant to the heir's of Mrs. Clarke of land lying to the eastward of that in controversy was subject to a similar condition as that contained in the grant to the plaintiff; which is also to be considered a condition subsequent. Both it and the grant to the plaintiff were, of course, subject to the condition contained in the grant from the state to the corporation of the city of New York, that in every grant by the latter the owner of the adjacent upland should have a preference. (Val. ed. Laws relating to city of New York, 809, § 15, 843, § 4.)

The defendants claimed that the possession of Mrs. Clarke’s heirs of land to the eastward of that in controversy, was adverse even as against the city corporation, by virtue of the grant by the latter to them ; and that if so, the entire grant of land to the plaintiff before mentioned was void, under the statute which makes grants of land held adversely by another void, (1 R. S. 739; § 147,) and that which makes their acceptance a misdemeanor. (2 R. S. 692, § 6.)

To maintain the first of the propositions thé statute in question (1 R. S. 739, § 147) must be construed to render void the whole instrument in which a grant of any land held adversely is contained, and not merely the grant of such land. There is a marked distinction in the object of statutes which avoid a particular provision in an instrument, and tliat of those which avoid a whole instrument on account of the illegality of the purpose of part. In the former case, such provision is made void as a matter of policy to it alone ; in the latter, the whole instrument is looked upon as an engine of fraud or other violation of the statute, in which the valid and invalid parts are not to be separated. Such distinction is fully discussed and recognized by Justice Comstock in Curtis v. Leavitt, (15 N. R. Rep. 123, and cases cited.) See also Leavitt v. Palmer, (3 N. Y. Rep. 37,) in reference to the provision of the statute of frauds, (2 R. S. 135, § 1,) which makes all “ deeds of gift, conveyances, transfers and assignments ” of a certain kind void, which he held only made void what was contained in the instrument under consideration, which contravened the statute. The English case of Doe v. Pitcher, (6 Taunt. 363,) cited by the learned judge, just named, in delivering his opinion, is strongly in point. In that case the statute under consideration expressly avoided “all assurances,” &c. of a certain kind, I" had occasion recently in a case at general term, (Towle v. Palmer, 1 Rob. 437,) to consider the distinction before mentioned. Upon more full review of the principles and authoritiies I am content' to follow the principle there laid down, and hold that as the statute in reference to grants of lands held adversely does not make the whole instrument void, only that part becomes inoperative whish violates the law.

In reference to the statute which makes the acceptance of a grant of lands held adversely a misdemeanor, (2 R. S. 691,) I apprehend it does not invalidate the grant of other lands in the same conveyance. The grantor could not reclaim the other lands so conveyed, or even that held adversely. (Jackson v. Demont, 9 John. 55. Livingston v. Proseus, 2 Hill, 526. Kenada v. Gardner, 3 Barb. 589. Poor v. Horton, 15 id. 485.) In Van Dyck v. Van Beuren, (1 John. 345,) the separability of the legal from the illegal grant is conceded. The fifth section of such statute only applies to lands the subject of an existing-suit, and is of course inapplicable to the grant under consideration. The sixth section forbids buying or selling pretended titles to land “ unless the grantor, &c. shajl have been in possession of * its reversion * or have taken the profits for a year previously.” A quit rent was reserved and payable to the city corporation by the grant to Mrs. Clarke. The statute of course could only extend to cases where profits were not payable, and not where they were not paid. Moreover the right of the city corporation to re-enter for the condition subsequent probably deprived the possession of the heirs of Mrs. Clarke of the character of being adverse to the corporation, under the cases of Webb v. Bindon, (21 Wend. 98,) Preston v. Hunt, (7 id. 53,) and Hassenfrats v. Kelly, (13 John. 466,) notwithstanding the principles laid down in The People &c. v. Trinity Church, (22 N. Y. Rep. 44;) The same v. Van Rensselaer, (8 Barb. 189,) and Pepper v. Haight, (20 id. 429.) The evidence in this case, therefore, would not be sufficient to have convicted the plaintiff of a misdemeanor, and consequently could not have avoided the deed to him.

A statute recently passed (1862) allows the grantee of lands held adversely to bring an action in the name of his grantor against the party in possession. (Code, § 111, 2d paragraph.) This would seem to repeal by implication the statute making the taking of such conveyances hereafter a misdemeanor.

The plaintiff therefore established a good title as against the defendants, and the dismissal of the complaint was improper. The judgment and order denying a new trial must be reversed and a new trial granted, with costs to abide the event.  