
    Garcia v. Callender.
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    Deed—Construction—Pre-Emption.
    A covenant by the grantee in a deed that the grantor “ shall at any time have the right of pre-emption of the premises ” at a stated price, does not give the grantor a right to repurchase except when the grantee wishes to sell.
    Appeal from special term, New York county.
    Action by Miguel Garcia, as executor of John Garcia, deceased, against Mary R. Callender, to compel the conveyance of land. The complaint was dismissed at the trial, and plaintiff appeals.
    Ingraham, J., delivered the following opinion at special term: “The sole question in this case depends upon the construction to be given to a covenant contained in a deed dated the 24th of October, 1854. By that deed the plaintiff’s testator conveyed to the defendant’s predecessor in title the premises in question, in consideration of the sum of $12,000. The deed contained covenants on the part of the grantee against nuisances, and then the covenant which the plaintiff in-this action seeks to enforce, as follows: ‘And the said party of the second part, for herself, her heirs and assigns, doth hereby further covenant and agree to and with the said party of the first part, his executors, administrators, and assigns, that the said party of the first part, his heirs, executors, and administrators, shall at any time have the right of preemption of the premises above described and conveyed to the party of the second part by the party of the first part, at and for the same price as the above-mentioned consideration for this conveyance, to-wit, the sum of twelve thousand dollars.’ There is no allegation that the defendant is about to sell the property or has offered it for sale, but plaintiff’s'cause of action is based upon the claim that the covenant in question gives him a right to a conveyance of the property at anytime, upon tendering the amount fixed, viz., $12,000. The word pre-emption is derived from 'pros’ and ‘ emptio,’ and is defined as the act of buying before another. See Imperial Dictionary; and by Webster, ‘ The act or right of purchasing before others.’ The right of pre-emption would therefore be the right to purchase before or in preference to others. In Jackson v. Schultz, 18 Johns. 175, the question presented was the construction of a lease in perpetuity which contained a covenant that in case the lessee should have a mind to dispose of the property, or any part thereof, then the lessee should first offer and give the pre-emption of buying and purchasing the same to the lessor; and the court in construing that provision say: ‘ The condition stipulated in the lease was that the lessor shall have apre-emptive right. ’ The right that is there called a pre-emptive right is a right to the first offer in case the grantee or lessee desired to sell, not an absolute right of the grantor to purchase at any time. The word has been mainly used in this country in relation to the right given to abutting owners of lands under water, granted by the state to municipal corporations, and to the right to purchase public lands of theUnited States, and in such connection the word has received a well-defined meaning. By section 15 of the act relating to the plan of the city of New York, passed April 3, 1807, a grant of land under water was made to the city of New York, with the following proviso: ‘Provided, always, that the proprietors of the adjacent lands shall have a pre-emptive right in all grants made by the corporation of said city, of any land under water granted to said corporation by this act. ’ And the subsequent grants to the city of New York of land under water contained substantially the same provisions. See chapter 58, Laws 1826; chapter 182, Laws 1837; chapter 268, Laws 1846 In Towle v. Palmer, 1 Rob. (N. Y.) 446, Judge Robertson, in construing section 15 of the act of 1807, before referred to, says: ‘It is very evident that the proviso under consideration could not take or have any effect while the city corporation should continue to hold the property granted, even if perpetually * * * no title to the land under water would follow such changes of right to the upland, but a mere possibility only, available in case the city corporation undertook to alienate the fee,’ and Bosworth, C. J., says, at page 459: ‘It is the obvious purpose of the statute to secure to owners of the upland * * * a pre-emptive right to the lands under water, to which that act relates, in the event of the corporation making grants of the same.’ In Mayor, etc., v. Hart, 95 N. Y. 456, the court, in construing a pre-emptive right, says: ‘ As such merely, [pre-emptors,] they are not entitled to a deed. The city may not choose to sell. * * "* It may fix a price which the pre-emptor will not pay, or hold the land and improve it in its own manner. Nobody is “legally entitled to a deed.’” The use of the word ‘ pre-emption ’ was in force .at the time of the execution of the conveyance in question, and is in accord with the meaning of the words contained in the dictionary before cited, and I can see no reason why in the covenant in question it should be given a different or broader meaning. The words ‘ at any time ’ in the covenant simply-extended this right so that it should not be terminated. The case of Randall v. Sanders, 87 N. Y. 578, is not in point. In that case the right of the grantor did not depend upon the definition of the word ‘ pre-emption,’ but the instrument under which lie claimed expressly provided that he should have a right to a conveyance of the property within a specified time on payment of a specified sum. If the construction of the covenant in question, as claimed by the plaintiff, prevailed, the effect would be to make the property inalienable, except to the grantor in the deed, and it would appear that such a covenant would be void, as inconsistent with or repugnant to the grant of an estate in fee-simple. See De Peyster v. Michael, 6 N. Y 490. The plaintiff has therefore failed to show a right to a conveyance of the property in question, and defendant is entitled to judgment, with costs.”
    Argued before Van Brunt, P. J., and Bartlett and Macomber, JJ.
    
      George H. Forster, for appellant. Henry H. Anderson, for respondent.
   Van Brunt, P. J.

By deed executed October 24, 1854, the plaintiff’s testator, John Garcia, conveyed in fee-simple the premises in question, a dwelling-house on Twentieth street, between Fifth and Sixth avenues, in the city of New York, to Jane J. Callender, the mother of this defendant. The deed contained the following covenant: “And the said party of the second part, for herself, her heirs and assigns, doth hereby further covenant and agree to and with the said party of the first part, his executors, administrators, and assigns, that the said party of the first part, his heirs, executors, and administrators, shall at any time have the right of pre-emption of the premises above described and conveyed to the party of the second part by the party of the first part, at and for the same price as the above-mentioned consideration for this conveyance, to-wit, the sum of twelve thousand dollars. ” Subsequently both the parties to this deed died. The plaintiff became the executor of the grantor, John Garcia, and the defendant became the sole heir of the grantee, Jane J. Callender, and continued to own and occupy the premises. Nothing appears to have been said or done in regard to this covenant until April, 1885, 31 years after the execution of the deed, when the plaintiff notified the defendant of a desire on his part to acquire said premises from her by the payment of $12,000, and a demand for a deed at that price was duly made. The defendant refused to convey said premises, stating that the property was not for sale; that she had not offered it for sale, and did not intend to sell it. The plaintiff then brought this action to compel the defendant to convey the property to him for $12,000. The court below held that the plaintiff failed to show a right to the relief demanded, and dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

It may not be at all necessary to add anything to the opinion of the learned judge who tried the case in the court below, but, in view of the fact that attention has been called upon this appeal to certain definitions of the word “pre-emption,” which were evidently not before the court at the trial of the case, it may be proper to add a word or two to that which was so well said in the opinion rendered upon the trial. In the construction of the words of a contract the intention of the parties is to be ascertained, if possible, and such intention is to control.' It is clear that in this contract the use of the word “pre-emption” has no relation to the definition given of it by Blackstone, relating, as the word there does, entirely to the prerogative of purveyance, or the right upon the part of the king’s purveyors of buying up provisions and other necessaries for the king’s household. In international law the word had another definition, where it meant the right of a nation to detain the merchandise of strangers passing through its territories or seas, in order to afford, to its own subjects a preference of purchase. It is certain that this right was not referred to in the deed in question. By the laws of the United States the right given to settlers on public lands to purchase them in preference to others is called the pre-emption right. And as this definition more clearly refers to a subject-matter similar to that which the parties to this contract had under consideration, it must have been some similar right which was intended to be preserved. It would seem to be clear that some other right than the mere right of repurchase at a given price was in mind, or that term, much more common, would have been used; and it therefore seems that the term in question was employed for the purpose of giving to the grantee a preference in the purchase over any other person, when the grantee desired to dispose of the property in question. In all the cases cited by the appellant’s counsel there was a clear covenant to reconvey, and although the phrase “right of pre-emption” may have been used, yet in the case itself was defined what the parties intended by the use of that term; as in the case of Randall v. Sanders, reported in 23 Hun, 611, and affirmed 87 N. Y. 578. But in no case has it been held that the mere giving of a right of pre-emption, without a covenant to convey at "any time, gives a right to compel a conveyance against the wish of the grantee. It may be true that this construction does not give the broadest effect to the words “at any time,” as is claimed by the appellant; but full effect may be given to those words by holding that at any time that the grantee desires to sell the grantor shall have the pre-emptive right to purchase. We think that this was what was intended by the parties to the instrument iu question, and that the learned court was right in holding that, until there was a desire to sell, the pre-emptive right could not be exercised. The judgment should be affirmed, with costs. All concur.  