
    BENNET v. WASHINGTON CEMETERY.
    
      N. Y. Supreme Court, Second District, Kings Circuit ;
    
    
      April, 1890.
    1. Constitutional law; restraints upon alienation.] A covenant in a deed which is merely executory in its nature, the fee remaining in the grantor until performance of certain conditions, which requires the grantee, upon making sales of parcels of the property in cemetery lots, to pay to the grantor a certain sum for each lot of specified dimensions sold, does not violate the constitutional prohibition (Art. 1, §§ 12-15) against feudal tenures, rents, services, fines, quarter sales and other like restraints upon alienation, as the grantor is not divested of either title or possession until compliance with the terms of the covenant.
    
    2. Covenant in deed to cemetery, not to sell lots below certain price, and to account to grantor.] A cemetery association, in a deed to it of the proposed cemetery property, covenanted to pay half-yearly to the grantor §40 for each lot of 400 square feet sold by it, and in ■ proportion for larger or smaller lots, and §3 for each grave opening, until all the land should be sold, it agreeing further that no lot of 400 square feet should be sold for less than $80, or in proportion for more or less land, etc. In an action by a successor in interest of the grantor to recover a sum alleged to be due upon such sales. —Held, that the covenant was valid, and although the plaintiff might have no interest in so much of it as forbids sales for less than $80, he was entitled to recover $40 for each lot sold, even though for less than $80; but that the provision for payment of $3 for each grave opening, only applied where single graves were sold as distinguished from lots, and did not include grave openings on lots sold.
    Trial by the court.
    William M. Bennet brought this action to recover certain moneys claimed to be due under a covenant contained in a deed made by his ancestor to the defendant. The deed, which was made in 1853, “for and in consideration of the sum of ten dollars (and the premises hereinafter stated) ” conveyed a tract of land to the defendant “ in conformity to the premises hereinbefore stated.” The “premises” referred to in the consideration and habendum clauses were defined in a subsequent part of the deed and were in part as follows-:
    “Now, the premises above referred to, which are to be deemed part of the consideration to be paid by the party of the second part to the party of the first part, are as follows: That the said party of the second part shall well and truly pay in lawful money of the United States, half-yearly from the date of this conveyance, to the party of the first part or his assigns during his life-time, or to his attorney or agent, assigns, or to his heir or heirs, legatees, executors or administrators after his decease, the sum of forty dollars for each and every lot of four hundred square feet of land, and in proportion for a larger or smaller lot, which the said party of the second part shall dispose of in any manner whatsoever, as a place or places for the burial of the dead, and three dollars for each and every grave opening until all the land described in this deed, or such part of it as may remain after the satisfaction of an existing mortgage thereon, shall be sold for cemetery purposes only; and the said party of the first part, his assigns, heirs or legatees, shall be entitled to the grass, wood, timber, and other produce of the soil of all parts of said land, which may remain unsold in conformity to the condition of this deed, until all such land shall be sold in lots as aforesaid, and have interments therein. And the said party of the second part hereby agrees with the said party of the first part, that no lot of four hundred square feet shall be sold for less than eighty dollars, or in proportion for more or less land, unless the trustee shall deem a less sum than forty dollars per lot sufficient for improving the ground and for other purposes than the purchase money.”
    The terms of the deed were considered, and the nature and extent of the estate created by it, were determined in Bennett v. Culver, 97 N. Y. 250.
    
      Thomas JE. Pearsall, for plaintiff.
    
      George W. Wingate, for defendant.
    
      
       Those provisions are as follows:
      § 12. All feudal tenures of every description, with all their incidents, are declared to be abolished, saving, however, all rents and services certain which at any time heretofore have been lawfully created or reserved.
      § 13. All lands within this State are declared to be allodial, so that, subject only to the liability of escheat, the entire and absolute property is vested in the owners, according to the nature of their respective estates.
      § 14. No lease or grant of agricultural land, for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid.
      § 15. All fines, quarter sales, or other like restraints upon alienation, reserved in any grant of land, hereafter to be made, shall be void.
    
    
      
       For a note on stipulations for restraints on use running with the land, see. 13 Abb. N. C. 105.
      For a note on conditions subsequent, 23 Id. 416.
    
   Cullen, J.

The covenant to pay the grantor at the rate of $40 a lot of 400 square feet, for all lots sold is valid. In the case of Bennet v. Culver, decided by me at Special Term, I held that the deed carried a present fee and yet was of opinion that this covenant was not invalid. It is in no sense a restriction upon alienation, for the whole deed shows that not only did both parties contemplate a sale of the land in cemetery lots, but it was only by such sale that the grantor could obtain pay for the lands granted. In fact, the covenant in this regard is a mere extension of credit for the purchase money to the grantee until it has been able to realize the money by a sale. But the decision made by me was reversed by the General Term and by the court of appeals. The latter court held (97 N. Y. 250) that the deed was merely an executory agreement, under which the grantee, upon complying with its covenants, could either sell or itself acquire title. This disposes of any question as to the matter.

The provisions of the constitution (§§ 12 and 14, Art. l.)> relate to feudal tenures and grants of land. The principle of the common law that avoided covenants for payment of a portion of the purchase money on a sale of land or other restraint upon its alienation, proceeded on the theory that the grantor had no reversionary interest in the land after the grant of the fee. In a lease such provisions are unquestionably valid (De Peyster v. Michael, 5 N. Y. 468).

Under the construction of the deed adopted by the court of appeals, the grantors had far more than a reversion. They were not divested of either title or possession until compliance with the terms of the covenants. The covenant is absolute to pay at the rate of $40 a lot. It may be that the grantors are not interested in so much of the covenant as forbids sales at a less price than $80 per lot. However that may be, the defendant must pay the stipulated sum on a sale at whatever price it may sell for. If it cannot realize sufficient to pay the grantors, it must not sell.

. The covenant to pay three dollars for each and every grave opening, I think, should not be construed to include grave openings on lots sold, but only to cases where single graves are sold as distinguished from lots. I have very grave doubts whether such a provision, if construed to apply ■ to private lots, would be valid. It has been held by this court (Babnabd, P. J.,) that a by-law of a cemetery requiring monumental work to be done by designated workmen was void. There is no provision that any such provision or restriction should be inserted in the sales made by the cemetery. The deed provides that the-payments prescribed shall be made until all the lands are sold for cemetery purposes.

Therefore, when all the lots are sold, payments for grave opening would cease, even though interments would continue long afterwards. This shows that this payment was not to be made for interments in private lots. As already said, the defendant has no monopoly of grave digging in the cemetery. It is unreasonable to suppose that it was to pay, when it might not do the work, or receive any pay or fee. I think the clause is well confined to the case of the sale of single graves.

Judgment for plaintiff with costs in accordance with this opinion.  