
    Lucy A. Carroll, Appellant, v. Title Guarantee and Trust Company and John D. Adams, Respondents.
    Second Department,
    March 12, 1909.
    Beal property — bailment—deposit of money to be repaid to grantor when release of restrictive covenants obtained — release of grantor’s rights not compliance with contract — courts cannot modify agreement of parties.
    Where on a conveyance of lands, pursuant to the terms of the contract of sale, the grantor deposited with a trust company a sum of money to be returned to her if within .eighteen months from the delivery of the deed she obtained and recorded releases of covenants made by prior owners, subjecting the lands to the pollution of a certain creek, and prohibiting the owner from keeping a dog thereon, the deposit to belong to the grantee in case such releases were not obtained, the grantor by merely executing and recording an instrument releasing her own right of re-entry, or reverter, or right of forfeiture for a breach of the conditions is not entitled to recover the deposit.
    Such contract contemplates not a personal release by the grantor, but a release from the prior parties entitled to enforce the covenants, and the suit to recover the purchase money is in effect one to modify a contract by striking therefrom a provision unwisely made. The court cannot alter the contract of parties because it was unwise.
    Appeal "by the plaintiff, Lucy A. Carroll, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Suffolk on the 18tli day of ¡November, 1908,' upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits.
    
      Robert H. Griffin, for the appellant.
    
      Edward M. Perry, for the respondents.
   Miller, J.:

On the 7th day of October, 1907, the plaintiff and the defendant Adams entered into a contract of purchase and sale of certain real property, containing the following provision: “ Said premises are to be conveyed subject to a covenant as to the pollution of Awixa Creek, set forth in Liber 383 of Conveyances, page 36, and as to the condition iii Liber P. of Conveyances, page 198, the vendee agrees not to make any objection to said title upon the following terms and conditions: There shall be deposited with the Title Guarantee and Trust Company the sum of Twenty-five hundred (2,500) Dollars, to be held by said Company on or before eighteen (18) months from the date of the delivery of the deed. If before the expiration of said 18 months the said vendor shall have perfected and obtained and recorded a proper release of the conditions set forth in said deed, in accordance with the judgment of the counsel of the said' Title Guarantee and Trust Company, then and in that event, the said Twenty-five hundred (2,500) Dollars shall be returned to the vendor. In case at the end of said eighteen months, as aforesaid, the vendor shall not have obtained. such release as aforesaid, then and in that event said money shall be paid to the vendee, and his executors or administrators in full release for all penalties or claims of any kind against the vendor because of such conditions.” Pursuant to that contract, a ■ deed was executed and delivered on the 15th day of October, 1907, and the purchase price was paid as provided in said contract, the sum of $2,500 being deposited by the vendee with the defendant, the Title Guarantee and Trust Company, pursuant to the provision above quoted. The alleged condition, referred to in the contract of sale, related,to a one-half acre of the premises contracted to be conveyed, and was contained in- the habendum clause of a deed of said half acre, made in 1832, by a remote grantor, which was as follows: “To have and to hold the above granted, bargained and described premises with the appurtenances unto the said party of the second part, his heirs and assigns to his and their own proper use, benefit and behoof forever with this express reserve, and these presents are upon the express condition that the said party of the second part, his heirs and assigns shall not at any time hereafter keep a dog upon the premises hereby sold and in the non-performance of this condition these presents shall immediately be and become void.” On the 10th of January, 1908, the plaintiff executed and recorded an instrument which purported to release any right'of forfeiture, re-entry or reverter which she, might have by reason of said, alleged condition, and demanded the sum deposited with the defendant, the Title Guarantee and Trust Company as aforesaid. This suit is brought to recover the money thus deposited, but it is, in effect, a suit to modify a contract by striking therefrom, a provision as having been unwisely agreed to by the plaintiff.

There can be no doubt that the alleged release tendered by the plaintiff was not the release which the parties contemplated the plaintiff would perfect, obtain and record. Therefore,, the refusal of the Title Guarantee and Trust Company to approve it as such a release was not unreasonable, arbitrary or capricious, if that be of importance. Obviously, the parties contemplated a release by some one who might have the right to claim a forfeiture for the breach of the alleged condition, if it be a condition, or damages for breach of the covenant, if it be a covenant. The instrument executed by the . plaintiff was a nullity.

The able discussion of counsel respecting the question of whether the said provision was a condition or a covenant seems to us entirely aside from the question involved on this appeal; nor do we think it material to inquire whether that provision renders the title unmarketable. The parties have expressly stipulated what its effect shall be, namely, that unless the plaintiff could within eighteen months procure a release of it the $2,500 deposited with the Title Guarantee and Trust Company should be returned to the vendee “in full release for all penalties or claims of any kind against the vendor because of such conditions.” In effect, the plaintiff sold the property for $68,000 if she could procure the release provided for, and for $65,500 if she could not. Though the title may have been marketable, the vendee was not obliged to contract for it, and the court cannot substitute a different contract in place of the one actually made because it may think that the plaintiff was unwise in making it. If the contract had been silent respecting the alleged condition or covenant, the law would determine whether the title was marketable; but the court cannot decide that to be immaterial which the parties agreed was a defect to be cured by a release or to be allowed for in fixing the purchase price. The principle of Flanagan v. Fox (6 Misc. Rep. 132; affd. on opinion below,144 N. Y. 706) is applicable and controls the decision of this case.

The judgment is affirmed.

Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.

Judgment unanimously affirmed, with costs.  