
    Margaretha Richter, Plaintiff, v. Hugo E. Distelhurst, Defendant.
    First Department,
    December 7, 1906.
    Beal property—vendor and purchaser — provision for forfeiture if premises used for. offensive trades —when such provision inserted by executors void.
    When executors empowered to invest moneys in land and sell the same have, on conveying premises purchased with moneys of the estate not adjoining any lands owned by them or by those interested in the estate, inserted a provision against offensive trades, etc., running to their heirs, with words of forfeiture for a "breach of the condition, the conditiohisvoidandconstitut.es no incumbrance upon the lands, for executors as such have no heirs and there is none who can enforce the forfeiture.
    
      Moreover, if the condition, be deemed to have been intended' for the benefit of third persons owning adjoining premises, it-is still void, having no consideration to-support it.
    (Per Ingraham, J.): As there were no express words for re-entry, the provision was a covenant and not a condition, and under the circumstances was not enforcible. . •
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Charles Brandt, Jr., for the plaintiff.
    
      Eli S. Schreier, for the defendant.
   Clarke, J.:

Submission of a controversy on an agreed statement of facts.' Plaintiff agreed to sell and defendant agreed to buy a piece of property on Hiiith street in the city, of New York., The contract provided that the plaintiff should give a proper, deed containing a general warranty and the usual full covenants conveying and, assuring the fee simple, free from -all incumbrances, exbept a specified mortgage. On.the closing day defendant declined to take title upon ' the ground that the title of the plaintiff was not a fee simple, free from all incumbrances, as the premises were covered by a condition subsequent. The facts in regard to this are as follows : One Henry Kneeland died in,the year 1837 leaving a last will-and testament m which he appointed Charles Kneeland and Henry K. Bogert his executors and- trustees. In the will testator devised two-fifths of his estate to liis executors upon trust, “ to set apart, and ¡the proceeds or amount of one of said fifth parts in.good bonds and mortgages or in the purchase of productive real estate in fee in the City of New York ” for the benefit of a son and the other: fifth part for the benefit of a daughter, for life,, and for the purpose of making a distribution of his estate in the manner directed he authorized and empowered his executors to' sell at public or private sale"and' execute all proper conveyances; The executors, acting under the power contained-in the will, invested funds of th¡e estáte in-the premises referred to /in the contract herein, purchasing the same from one Cornelius Bogert by deed, dated February 16, 1844, and duly recorded. The said Bogert and- Kneeland, as¡ executors and trustees,'conveyed the premises .in question to one Rachel Leaven-Worth, by deed dated October 1, 1850, and recorded on October 31, 1854. Said deed, after the habendum clause and the general covenant as to title, contained the following : “ It is further covenanted and agreed between the parties hereto and the party of the_ second part hereby binds her heirs and assigns, not to erect or permit to be erected at any time hereafter upon said premises, any nuisance of any description, such as stables, slaughter, houses, liquor stores, colony houses, bone or soap boiling establishments, etc.; (sic) nor any building other than brick dwelling house of not less than two stories in height, under penalty of the forfeiture of the said lot to the parties of the first part or their assigns, upon any breach of this covenant.”

Bachel Leavenworth, grantee in said deed, died on March 14,1852, leaving a last will and testament, which was duly probated, in which Hathan Leavenworth and Frederick Sheldon were appointed executors. Said executors, under the authority"of an order of the Supreme Court, conveyed the said lot to William Knight by deed dated September 23, 1854, and recorded on October. 31, 1854. This deed is identical in form with the deed from Bogert and Kneeland, as executors and trustees, to Bachel Leavenworth, and contains the same covenant or condition.

The estate of Henry Kneeland.did not own any other real property in the immediate neighborhood of the premises in question, but the executors of Kneeland did own, as individuals, real property on either side of the said premises. The estate of Bachel Leavenworth did not own any real property in the neighborhood.

Do the deeds hereinbefore set forth impose a covenant or a condition subsequent upon the premises ? Whether or not a clause in a deed is to be interpreted as a covenant or as a condition subset quent does not depend entirely upon the technical language used.

In the case of Post v. Weil (115 N. Y. 361) the language of the first deed under consideration was as follows: “Upon the special condition that no part of the land or buildings thereon should ever be used or occupied as a tavern.” The second deed contained this clause: “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 heréafter used or occupied as a tavern or public house of any kind.” Judge Gray, in construing these to-be covenants, said: I would not pretend to' reconcile all the decisions which have been made upon the subject, but-1 readily extract the principle that technical words may be overlooked where they do not inevitably evidence the intention 'of parties. - * * * If we can construe tliis clause as an obligation to abstain from doing the thing described, which by acceptance of the deed became binding upon the grantee as an agreement, enforceable in behalf of any interest entitled to invoke its protection, I think we a’re in conscience bound to give that construction, and thereby place ourselves in accord with that inclination of the law, which regatos wjith disfavor conditions involving forfeiture of estates: In this connection it may be noted that there is no clause in the deed giving the right to re-enter for conditions broken. .While the presence of such'a clause ■is not essential to the creation of a condition subsequent by which an estate may be defeated at the exercise of an ejection by the grantor or his heirs to-re-enter,, yet its absence, to that extent, frees still more the case from the difficulty of giving a more benignant construction to the proviso clause. The presence- of a re-entry clause might make certain that which in its absence is left open to construction.”- In Graves v. Deterling (120 N. Y. 447). Judge Yahh said : “ There is no provision for a forfeiture <pr re-entry,, nor anything from which it can fairly be inferred that tljie continuance of the estate is to depend upon the supposed condition, yet .this is regarded as essential in order to create a condition.” ■

There are no words of re-entry in. this- deed. There are, however, distinct words of forfeiture, Under penalty of the forfeiture ■of the said lot to the parties of the first part oñ their assigns upon any breach of this covenant.” This language in my opinion is as strong as a reren try- provision. Were it not for the further considerations, it would seem as if the clause standing by itself would have to be construed as a condition subsequent and not a covenant.' The trustees under the will were expressly given power to use the funds of the estate to buy real estate and also to'convey it. Under .that power they bought this property .and subsequently conveyed it. As a rule covenants and conditions of this character, for the purpose of .preventing certain described uses -of property, are for the benefit of adjacent property owned by the grantor, or upon mutual covenant of adjoining property holders'for their own protection. In this case the estate owned no adjoining property at all, nor did the subsequent estate, that of Leavenworth, whose executors conveyed in turn by a similar deed, own any adjoining property.

It appears that the executory of Kneeland did own adjacent property on each side of this building, as individuals, and undoubtedly their object in inserting this provision in their- executors or trustees’ deed was for the purpose of protecting their individual property. I do not think that the condition prescribed under such circumstances had any consideration to support it.

Further, the right of forfeiture or re-entry is lodged in the grantor pr his heirs (Upington v. Corrigan, 151 N. Y. 143), and neither executors nor trustees, as such, can have heirs, and, therefore, no one has the power to re-enter or to forfeit.

The defendant contends that while it is true that so far as the condition reserved to the assigns of the parties of the first part a right to re-enter for conditions broken, it was undoubtedly void, that nevertheless the heirs of Kneeland and Bogert could enforce the condition and would then hold the title in trust for the person beneficially interested under the will and that the same reasoning applies to the deed by the executors of Leavenworth.

This is to disregard the plain language of the condition, and, as provisions for forfeiture are viewed with extreme disfavor by the law and should be strictly construed, this strained construction is not permissible.

I reach the conclusion, therefore, that this clause in the deed of Kneeland’s executors was never enforcible. At best, using the language of Post v. Weil (supra), it was “ an obligation to abstain from doing the thing described, which by acceptance of the deed becarhe binding upon the grantee as an agreement, enforceable in behalf of any interest entitled to invoke its protection.” But it was not so enforcible at the time, as the grantors had no property as execu- ' tors or trustees to be benefited, nor presently nor in. the future, as there are no heirs and never could have been any heirs of said executors or trustees.

The clause may be considered as having been originally inserted in terrorem. It was evidently for the benefit of others than the grantors from whom* no consideration passed and wiith whom there was no mutuality. The facts are all of record, and :as these record facts establish that no enforcible condition now exists to the detriment of this estate, the plaintiff should have judgment herein for the. specific performance of the contract under the ¡stipulation and-for costs'and disbursements.-

McLaughlin and Laughlin, JJ., concurred;. Patterson; J., concurred in result:

Ingraham, J. (concurring):

I concur in the opinion of Mr. Justice Clarke, upon the ground that I think this clause in the deeds of 1850 and 1854 should be construed as a covenant and not a condition. The absence of any words of re-entry leaves the clause open to a construction that a covenant was intended and not a condition, and tlie fact that there could be no one who could enforce a condition, as the trustees could have no heirs at - law, is an important element in construing, the instrument. Viewed as a covenant, I think it; clear that it is unenforcible, and I, therefore, think the plaintiff’s title was good and she is entitled to a judgment for the specific performance of the contract.

Judgment .ordered for plaintiff, with costs. Settle order on notice. - x - i  