
    LANTZ against BUCKINGHAM.
    
      Supreme Court, First District;
    
    
      General Term, June, 1871.
    Cemetery Lots.—Mortg-age.—Public Policy.— Strict Foreclosure.
    A statute declaring that cemetery lots shall not be liable to sale on execution nor applied to payment of debts by assignment under insolvent laws (Charter of Greenwood Cemetery, Laws of 1838, p. 298, ch. 298, § 5), does not preclude mortgaging such lots, nor prevent a strict foreclosure of the mortgage.
    
    
      
      It seems, that it does not prevent a foreclosure by sale.
    Such a statute does not apply to a voluntary act of the owner affecting the title.
    A mortgage of a burial lot is not void as against public policy.
    
      Appeal from a judgment.
    David H. Lantz brought an action against George A. Buckingham, upon the following facts. The defendant, being the owner of a lot in Greenwood Cemetery, conveyed the same to the plaintiff by an absolute conveyance. The plaintiff executed at the same time to the defendant an instrument in writing, reciting the conveyance and agreeing to reconvey the same to the defendant, on repayment to him of the consideration money, with interest, in one year. He also gave the defendant the privilege of interring in the plot during the year. The money not having been repaid, the plaintiff treated it as a mortgage, and commenced this ■action for the foreclosure of it. The defendant demurred ■to the complaint, upon the ground that the same did not state facts sufficient to constitute a cause of action. Judgment was given in favor of the demurrer.
    The complaint in the action alleged as follows : That the defendant being indebted to the plaintiff in the sum of three hundred and eighty dollars and ninety-seven cents, on November 6, 1868, for the,purpose of securing the payment to the plaintiff of such sum, executed and delivered to the said plaintiff a •certain deed or instrument in writing, intended to be and being in fact a mortgage, and bearing date on said sixth day of November, 1868, and duly recorded on the books of the Greenwood Cemetery, whereby he granted, bargained, sold and conveyed to the said plaintiff: All that certain lot of land in the Greenwood Cemetery known by the number ‘ eleven hundred and seventy-one’ (1,171), containing four hundred and fifty superficial feet, being the same lot of land conveyed to him,the said George A. Buckingham, by the conveyance thereof, made and executed by the said Greenwood Cemetery, and bearing date the fourteenth day of November, A. D. 1850; and that the said plaintiff at the same time executed and delivered to the defendant a certain instrument in writing, bearing even date therewith, of which the following is a copy:
    
      
    
    ‘ ‘6 Mr. George Buckingham has this day conveyed to me Lot No. 1,171 in the Greenwood Cemetery, on the following conditions, viz: That the consideration in the above transfer, three hundred and eighty dollars and ninety-seven cents, shall be repaid me, with interest at seven per cent, per annum, within one year from the above date; on payment of which sum I agree hereby to reconvey the same lot to said Buckingham. Further, that said Buckingham shall have the privilege of interring in said lot within the said year the remains of any of his family, in the event of their decease.
    “ ‘D. H. LANTZ.
    “ ‘In presence of I). A. McCoy.’ ”
    The complaint then alleged a default in payment, and that no proceedings had been taken for the recovery of the debt, and continued as follows:
    “The plaintiff therefore demands that the defendant and all persons claiming under him, subsequent to the commencement of this action, may be bar sd and foreclosed of all right, claim, lien and equity of redemption in the said mortgaged premises; that the said premises may be decreed to be sold according to law that the moneys arising from the sale may be brought into court; that the plaintiff may be paid the amount due on the said mortgage, with interest to the time of such joayment, and the costs and expenses of this action, so far as the amount of such moneys, properly applicable thereto, will pay the same; and that the defendant may be adjudged to pay any deficiency which may remain after applying all of said moneys so applicable thereto : and that the plaintiff may have such other or further relief, or both, in the premises, as shall be just and equitable.”
    The defendant demurred, as above stated, and in giving judgment upon the demurrer, the following opinion was delivered at special term :
    
      
       There is a general act (1 Laws of 1847, p. 91, ch. 85), by which the owner of land (not more than one-fourth of an acre) set apart, and a portion of which has been actually used, for a family or private burying ground, may make and file with the county clerk a certificate thereof, and so secure its exemption from “ levy or sale by any execution or other legal process whatever.”
      The general Rural Cemetery Associations Act has a somewhat different exemption. The provision of the act as amended in 1869, is as follows: “ The cemetery lands and property of any association formed pursuant to this act shall be exempt from all public taxes, rates and assessments, and shall not be liable to be sold on execution or be applied in payment of debts due from any individual proprietor (provided such individual proprietor shall have actually used the lot or lots held and owned by him for a family burying lot by interment therein, or shall have acquired and shall hold the same with an intent to use the same). But the proprietors of lots or plots in such cemeteries, their heirs or devisees, may hold the same exempt therefrom, subject to the above proviso, so long as the same shall remain dedicated to the purposes of a cemetery ” (1 Laws of 1847, p. 129, ch. 133, § 10, amended by adding the words in italics, by 2 Laws of 1869, p. 1676, ch. 708).
      By the amending act of 1871, ch. 378, the trustees of associations formed under the Rural Cemeteries Act, may sell vacated lots for unpaid expenses of certain improvements.
      Another act of the same year (ch. 68), allows lands to be dedicated as family cemeteries by deed or will, and empowers executors, with consent of those interested, to set apart or purchase lands; and provides for the appointment of trustees, &c., to manage them.
      The Private and Family Cemeteries Act of 1854 (Laws of 1854, p. 265, ch. 112), contains no express exemption. Chapter 68 of 1871, which is in form an amendment or addition thereto, declares that it does not create any new exemption.
      Soldiers’ monument grounds are the subject of another act (Laws of 1866, p. 613, ch. 273, § 6).
      Chapter 419, of the Laws of 1871, is “ An act to authorize the sale of' unoccupied lands of burial ground and rural cemetery associations.” It was passed and took effect April 12, 1871, and is as follows:
      “ Section 1. It shall be lawful for the supreme court of this State, upon the application of the trustees of any burial ground or rural cemetery association, in case such court shall deem it proper, to make an. order for the sale of any real estate belonging to such burial ground or rural cemetery association, and to direct the application of the moneys arising therefrom by such trustees to such uses as such. trustees, by the consent and approbation 'of such court, shall conceive to be most for the interest of the association to which the real estate so sold did belong. Provided, that no part or portion of the real estate of any burial ground or rural cemetery association which has been, now is, or hereafter may be, used for actual interments, shall be sold in pursuance of the provisions of this act.
      “ | 2. No real estate of any rural cemetery or rural cemetery association shall be sold otherwise than in pursuance of the act or acts under which such cemetery or association was incorporated, nor for any other than cemetery purposes, except as provided by section one of 'this act; and all acts and parts of acts inconsistent with the provisions of this act are hereby repealed.”
    
   Brady, J.

The defendant, for the purpose of securing a sum due from him to the plaintiff, executed to the latter a mortgage, so called by the plaintiff, upon a lot in “The Greenwood Cemetery.” The money is by the instrument to be paid within one year with interest, and the defendant reserves the privilege of interring in the lot within the year the remains of any of his family in the event of death. The plaintiff seeks to enforce this security by the usual decree and sale in foreclosure proceedings. The defendant demurs upon the ground that the complaint does not state facts sufficient to constitute a cause of action. Section 5 of the act incorporating Greenwood Cemetery provides that the real estate of the corporation and the lots or plots when conveyed by the corporation to individual proprietors shall be exempt from assessment and not liable to be sold on execution, or to be applied to the payment of debts by assignment under any insolvent law. There is no prohibition in this statute against the conveyance of these lots or plots, and the right of transfer for aught that appears is undoubted. The instrument upon which this action is brought is treated as a mortgage, and doubtless must be so regarded, but the reservation of the right by the mortgagor to bury any of his family in the plot mortgaged would indicate that the intention was not to pass the title to the mortgagee. It is not within the range of financial or commercial affairs to suppose that a man designed to transfer the remains of any of his family, even conditionally, which must be the. effect of the mortgage and a failure to discharge the obligation, the performance of which it is given to secure.

Regarding it in the light of a mortgage security, I think it is not to be sustained. It is against good morals, and therefore against the policy of the law, to encourage such instruments. The legislature have so declared substantially in providing that the lot or plot shall not be liable to be sold on execution, as appears by the act referred to. Assuming, however, that the instrument is not bad for the reason assigned! it nevertheless cannot be enforced so far as to sell the property. The decree of foreclosure is an equitable execution, and no distinction is made in the statute between such and any other executions.

The language is, ‘ ‘ not liable to be sold on execution,” and further, “or to be applied to the payment of debts by assignment under any insolvent law.” If the owner’s assignee in insolvent proceedings, who takes the property of the assignee for the purpose of paying the debts of the latter, cannot take and apply the lot, there is no seeming reason why under the statute a mortgagee who takes to pay his debts should not be within its purview and prohibited. - The conveyance absolute of the lot is entirely different from a mortgage. It passes the title absolutely without exposing the transaction to the unfortunate, if not demoralizing result of a sale of the sanctuary of the dead —a character which may be given to the lot by interment therein after the execution of the mortgage.

The question presented in this demurrer is not free from embarrassment I admit, and I state my conclusions not without some doubt about their correctness, but they embody my judgment after a careful consideration of the subject.

From the judgment sustaining the demurrer the • plaintiff appealed to the court at general term.

By the Court.—Ingraham, P. J. [After stating the facts.]

There can be no doubt that the conveyance, by itself, was a valid instrument, which the defendant had a right to execute, and which the plaintiff might accept. It was for a good consideration, and transferred the title to' the lot to the plaintiff. The only question is whether the defeasance executed by the plaintiff at the same time—in which he agreed to reconvey the property on receiving a certain amount, with interest— vitiates the conveyance. I have remarked that the owner had a right to grant the lot absolutely. I see no reason why he might not, under these two instruments, have sustained an action for a strict foreclosure, and thereby obtained a perfect title. Such a decree or judgment would not have required any execution to enforce it, and would not have come within the prohibition of the statute.

The statute (Laws of 1838, p. 298, ch. 298, § 5) provides that the plots, when conveyed to individuals, shall not be liable to be sold on execution, or to be applied to the payment of debts by assignment under any insolvent law. This is evidently intended to prevent the sale of the property for the payment of the debts of the owner against his will by process of law, or by a general assignment under an insolvent act. The foreclosure of a mortgage does not require any execution or assignment to carry it into effect. The judgment itself directs the officer to sell, and the sale is made under the judgment, and not by virtue of an execution.

Although the plaintiff claims a sale of the premises in his complaint, still he states facts sufficient to show that he is entitled to a strict foreclosure without a sale, and so' far as this action is attacked by the demurrer, the objection of the statutory provision would not deprive him of 'that remedy. The statute was not intended to apply to any voluntary act of the owner by which his title to the lot was to be affected. He has taken the price for it, and given his consent to a transfer; he cannot now retain the money and at the same time object that the instrument given to secure the same is void. Ho such result can fall on the acceptance and retention of the money, except in cases in which by statute the security is declared to be void.

It is suggested that to permit such a mortgage to be held valid, was against public morals. I can see no difference, so far as a question of morals is involved, between a sale by an absolute conveyance and a sale by a conditional conveyance. In the one case the title to the property is' changed at once ; in the other, the grantor has the right to retain the property by repayment of the money he has received. However objectionable it may seem to allow such transfers of plots intended and used for burial purposes, an absolute prohibition against conveyances such as is contained in the act (Laws of 1847, p. 129, ch. 133, § 11) passed by the legislature is necessary before the courts can declare them to be invalid. >

The judgment should be reversed, and judgment ordered for plaintiff on demurrer, with leave to the defendant to answer on payment of costs

Gh Gr. Babhabd, J., concurred.

Judgment reversed, and a decree of strict foreclosure granted.  