
    Charles D. Archer and George Archer, as Executors, etc., of Michael A. Archer, Deceased, Appellants, v. James Eckerson and J. Esler Eckerson, Respondents.
    
      Contract — in reference to land under water — title acquired by condemnation is not acquired by “ grant" — money already paid, not recoverable.
    
    The plaintiffs, holding as trustees the title to certain lands abutting upon the Hudson river, entered into a contract whereby they agreed to convey to the defendants all their right, title and interest in and to the lands under water in question, “and also all right, title and interest which” the plaintiffs might acquire ‘ ‘ to such land by grant or otherwise under or by reason ” of a then pending application which had been made to the Commissioners of the Land Office by the plaintiffs and a third party for a grant of the land under water in question, and also to execute to the defendants, as soon as such grant should be made, a good and sufficient deed of the land granted.
    The consideration for the contract was to be paid in installments, one at or before the execution of the contract, another when the deed should be delivered, and the rest at later specified times.
    At the time of the execution of the contract, a railroad company was seeking to obtain from the Commissioners of the Land Office a grant of the same lands under water, and the defendants had made a contract with it whereby they had agreed to pay aU the costs and expenses of acquiring such land under water, whether the same was acquired by grant from the State or by condemnation proceedings. The contract made between the plaintiffs and the ■ defendants provided that, if the grant should be made to the railroad company, the payments to the plaintiffs should still be made, but neither the railroad company nor the plaintiffs obtained a grant from the Commissioners of the Land Office, and the railroad company subsequently took the lands under water by condemnation proceedings. Subsequently the plaintiffs tendered a deed to the defendants and demanded payment of the second installment.
    In an action brought to recover such installment, it was
    
      Held, that as neither the plaintiffs nor the railroad company had procured the grant, the plaintiffs were unable to give the requisite deed, and the consideration for the payment of the second installment had failed and that the plaintiffs were not entitled to recover it;
    That the defendants were not entitled to recover from the plaintiffs the installment which they had paid at or before the execution of the contract, as it appeared that no conditions were, by the contract, annexed to that payment, and it was probable that the beneficial rights and interests of the plaintiffs as riparian owners, as against every one but the State, in the land under water was the reason why no such conditions were expressed.
    Appeal by the plaintiffs, Charles D. Archer and another, as executors, etc., of Michael A. Archer, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rockland on the 6th day of May, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing the complaint upon the merits.
    
      E. A. Brewster, for the appellants.
    
      Ralph E. Prime, for the respondents.
   Bradley, J.:

The action was brought to recover an installment of $1,000 alleged to be due to the plaintiffs upon a contract made between the parties under date of June 7,1890, whereby the plaintiffs, in consideration of $6,500, agreed to sell and convey to the defendants all their right, title and interest in and to lands under the waters of the Hudson river, the application for a grant of which by the Board of Commissioners of the Land Office having been made by the plaintiffs with Brewster J. Allison, was then pending before the board, “ and also all right, title and interest which the ” plaintiffs may acquire to such land by grant or otherwise under or by reason of the pending application, and to execute to the ” defendants “ a good and sufcient deed for conveying to them the lands which shall so be granted to the ” plaintiffs and Allison as soon as the said grant is made to them. The payments to he made by the defendants were $1,000 at or before the execution of the contract, the receipt whereof was thereby duly acknowledged; $1,000 when the deed should be delivered, and the residue in later specified installments. The first payment was made by the defendants. Before bringing the action the plaintiffs tendered a deed and demanded the payment of the second installment, and, on the refusal of the defendants to pay it, seek to recover it. The defense is founded on the fact that the plaintiffs had not obtained any grant of the land under water from the Commissioners of the Land Office.

It seems that prior to the time such contract was entered into an agreement was made between the defendants and the Hew York and Hew Jersey Extension Railroad Company, whereby it was recited that the company proposed to extend its railroad to the Hudson river, and had recently applied to the Land Office Commissioners for a grant of certain lands under water to be used in connection with its terminus at the river; that the defendants had acquired or were about to acquire certain land to the west of “ said lands ” under water, with the intention of erecting brick yards and for dock facilities ; that it was for the interest of both parties to that agreement that the track of the company should not cross the tracks which the defendants proposed to lay for their use, and that it was to the interest of the company that the brick yards should be erected. Thereupon the defendants, among other things, agreed to pay to the .railroad company all the cost and expense incurred by it in connection with the acquisition of said land under water, whether the same should be acquired by grant from the State or by condemnation proceedings.

The relation of the defendants to the railroad company in respect to the use of the land in question under water was such that, in the first-mentioned contract, they agreed that if the “ said grant ” should be made to the railroad company the payments should be made. It evidently was then understood that the company, as well as the plaintiffs, had made application to the Commissioners of the Land Office for a grant of the land under water. Both applications were for grants of the same land. They were pending at the time the contract between the parties was made, and both were afterwards denied. Thereupon the railroad company instituted condemnation proceedings against the People of the State and conducted them to a successful conclusion. The land thus acquired is the same as that referred to in the complaint.

The view of the trial court was that the payment and the agreement to pay the residue were made in contemplation of a grant by the constituted authority of the State; and that as none had been made to the plaintiffs, they were unable to give the requisite deed; also, that the consideration for the defendants’ agreement failed, which entitled them to recover back the money paid, with interest.

As has been seen, the defendants undertook to pay in the event that a grant should be made of the land to the railroad company. It is urged by the plaintiffs’ counsel that the acquisition of it by the company through condemnation proceedings was a purchase in invitum, and, therefore, by grant. It is true that by taking the title in that manner the beneficial result was apparently the same to the defendants as it would have been if the company had taken by letters patent, and equitably the same reason would apparently seem to have arisen for payment to the plaintiffs as if title had been taken in that manner by the company. But the taking of title by the exercise of the right of eminent domain is not by grant in the common acceptation of the term. The term “grant” imports concession. Blaclcstone says a grant “ differs but little from a feoffment, except in the subject-matter: for the operative words therein commonly used are dedi et concessi, ‘ have given and granted.’ ” (2 Black. Com. 317.) At common law a grant was a conveyance applicable to incorporeal hereditaments and not to livery of seisin. In this was the difference between a grant and feoffment. (4 Kent’s Com. 490-492.) In this State the mode of conveyance by feoffment and livery is abolished, and the name of conveyance by bargain and sale is absorbed in the term grant. (1 R. S. 738, §§ 136-138; 739, § 142.)

The railroad company did not take the title by grant in fact, nor by the grant contemplated by the parties, and, therefore, the condition precedent to the defendants’ undertaking to make payments subsequent to the time of the execution of the contract was not performed. But the fact that the company had obtained the title, and that the plaintiffs could not obtain it, was not necessarily such a failure of consideration as to enable the defendants to recover back the money they had paid. The plaintiffs’ testator, at the time of his death, was a riparian owner of the 'land bordering upon that in question under water. By his will the plaintiffs took title to his real estate, as trustees, and by statute the Commissioners of the Land ' Office were authorized to grant the laud under water to them. (Laws 1890, chap. 275.) As against everybody other than the State, the plaintiffs, as such trustees, had beneficial rights and interests as riparian owners, extending beyond the dry land, for the purpose of access to the water, and to construct piers and wharves for their own use, etc. (Yates v. Milwaukee, 10 Wall. 497; Rumsey v. N. Y. N. .E: R. R. Co., 133 N. Y. 79.) The situation and all the circumstances were known to the defendants when they made the contract and the preliminary payment, and it was contemplated by their agreement with the company that the latter might have occasion to resort to condemnation proceedings to get title to the land. The plaintiffs did not undertake to assure the conveyance by them of title to the defendants, nor by the express terms of the contract agree to get, or that the company would obtain, a grant from the State. Their right then existing as riparian owners very likely furnished a reason for the non-expression of any condition upon which the payment was made. The defendants took by the contract the right to a conveyance of such riparian interest or right as the plaintiffs then had and should thereafter acquire in the property and for which their application was then pending. This appears by the terms of the contract.

The principle announced in the case of Murray v. Richards (1 Wend. 58) is not deemed applicable to the payment made in the present case. In that case the transfer of property was made a condition precedent to payment, and as the subject-matter of the contract was destroyed so that the performance could not be had, the vendee was entitled to recover back the money paid by him. In the view taken the defendants were not entitled to recover the money which they had paid to the plaintiffs.

The judgment should be reversed and a new trial granted, costs to abide the event, unless the defendants stipulate to exclude from the judgment the recovery of $1,300 for the money so paid, and in that event the judgment be so modified and as modified affirmed, without costs of this appeal to either party.

All concurred.

Judgment reversed and new trial granted, costs to abide the event, unless the defendants stipulate within twenty days to exclude from the judgment the recovery of $1,300 for money paid; in the event of such stipulation being given, the judgment so modified is affirmed, without costs of appeal to either party.  