
    Greenwood Lake Imp. Co. v. New York & G. L. R. Co. et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    February 10, 1890.)
    Vendor and Vendee—Conditional Sale.
    A conveyance by a deed absolute in form, and duly recorded, which is accompanied by an unrecorded defeasance, wherein the grantee binds himself to reconvey if paid a specified sum within two years, but which defeasance vests him with authority to sell and convey the land, constitutes a conditional sale; there being no covenant by the grantor to pay the sum specified in the defeasance, nor anything to show that the sum paid hy the grantee was not an adequate consideration.
    Appeal from special term, Orange county.
    Action by the Greenwood Lake Improvement Company against the New York & Greenwood Lake Railroad Company and Robert B. Van Vleck, to restrain the railroad company from entering and using certain land, and for $1,000 damages for alleged trespass thereon. The title to the land is undisputed down to September, 1886, when William O. McDowell was the owner of an undivided one-half of the land, and Robert B. Van Vleck was the owner of the other undivided one-half. On September 20,1886, McDowell conveyed his half of the land to Van Vleck by a full covenant deed, which was recorded as a deed October 11, 1886. On the same day, September 20, 1886, Van Vleck executed an instrument back to McDowell reciting the deed to him and agreeing on payment to him (Van Vleck) within two years from the date thereof of the sum of $1,116.65, with interest, and such further sum, with interest, as he might advance meanwhile, to reconvey the premises to McDowell. This instrument was not placed on record. Provision was made therein for Van Vleck to lease or sell the land, and convey it, with the consent of McDowell. McDowell did not covenant to pay the money mentioned in the agreement, and there was no proof on the trial that the amount stated in the papers was not a fair price for the interest conveyed. On June 1, 1888, McDowell conveyed to plaintiff his undivided one-half, subject to the rights of Van Vleck under his deed of September 20, 1886. Before this last conveyance, in the month of September, 1887, at the request of Van Vleck, the defendant changed the location of its railroad track, so that about 400 feet of it was placed on the land of which an undivided one-half was conveyed to him by the deed of September 20, 1886. The trespass complained of by plaintiff was the use of this 400 feet of track from June, 1888, to the trial of the action. McDowell did not pay the money mentioned in the agreement of September 20, 1886, within the two years limited therein. On the trial the court made the following findings:
    “matters of fact.
    
      “First. The plaintiff is a corporation organized under the laws of the state of New York, and the defendant railroad company is a corporation organized under the laws of the state of New Jersey. Second. The plaintiff acquired such rights as it has in the lands described in the complaint under a deed from William O. McDowell and wife, dated June 1, 1888, recorded June 4, 1888, subject to the rights of Robert B. Van Vleck under a conveyance of the same interest therein to him, executed by William O. McDowell and wife September 20,1886, and recorded as a deed October 11,1886, in the Orange county clerk’s office, also subject to a mortgage thereon of six thousand dollars. Third. The undivided half of the premises to which the plaintiff asserts title was conveyed by William O. McDowell and wife to Robert Van Vleck by a deed absolute in form, dated September 20,1886, and executed on that day, which was recorded as a deed in Orange county, October 11,1886. On the same day Van Vleck executed back to McDowell an agreement to reconvey such undivided half of the premises to him if the sum of $1,116.65, and such other moneys as he should advance in the meanwhile, was repaid within two years from the date thereof. Fourth. The other undivided half of the premises was conveyed to Robert B. Van Vleck by an absolute conveyance by William O. McDowell and wife, September 28,1886, recorded October 1,1886. At the time of the execution and delivery of the deed to the plaintiff, hereinbefore found, Robert B. Van Vleck was in possession of the entire premises, with record title to the whole thereof. Fifth. The moneys mentioned in the agreement from Van Vleck to McDowell were not paid at any time within two years from the execution of that agreement. Sixth. The defendant the New York & Greenwood Lake Railroad Company in the year 1887 entered upon the premises mentioned in the complaint, at the request and under the permission of Robert B. Van Vleck, and laid down a railroad track thereon. Since June 1, 1888, such defendant has used such railroad track for railroad purposes, and such use has been and continues with the permission and under the license of said Van Vleck. Seventh. The license given by said Robert B. Van Vleck to enter on said premises, and use the same, has not been revoked.
    “conclusions of law.
    
      “First. The conveyance from William 0. McDowell and wife to Robert B. Van Vleck of September 20, 1886, and the agreement from Van Vleck to McDowell of the same date, constituted a conditional sale of the undivided half of the premises therein described; and on the failure to pay the money in such agreement, provided to be paid within two years from the date of such agreement, the title to such undivided half became absolute in the grantee in said deed. Second. The New York & Greenwood Lake Railroad Company has been since June 1, 1888, and now is, lawfully in the occupation and use of the premises mentioned in the complaint, to the extent that it had during that period used and occupied them. Third. The plaintiff is not entitled to ■the relief demanded in the complaint, or any part of such relief, and its complaint should be dismissed on the merits of the action, with costs, and I order and direct judgment accordingly.” »
    The judge also filed the following opinion: “Barnard, J. Thedeedfrom McDowell to Van Vleck was intended to be absolute, and to convey a title, and was not a mere conveyance with a defeasance. It is absolute on its face. The accompanying.agreement provided for a reconveyance for a fixed sum within two years. It is true this sum had been loaned by Van Vleck to McDowell, but, if the deed was only intended as a security, payment would reinstate McDowell without a reconveyance by Van Vleck. The deed was recorded as a deed. The agreement provided for sales by Van Vleck under the deed during the two years, and provided only that the purchase price should be agreed to by McDowell, and should be credited on the purchase price. It is inconceivable that the parties designed to have conveyances made which rested solely on a mortgage title. If Van Vleck was the real owner, the case is a plain one. The railroad company defendant had a contract with Cooper & Hewitt to carry ice from their house. This ice-house property had a right of way over the Van Vleck property for cars. It is not ■entirely clear that the right of way was confined to the 75-foot strip, but, assuming it was so confined, it was competent for Van Vleck to change the location, so as to put it on his land outside of the strip, and for his own, benefit. He did this. The defendant expended large sums of money, under Cooper & Hewitt, to make the new road. The parties had the right to construe the right of way to be broad enough for this, and, having executed the agreement in respect thereto, the new way binds both parties. The complaint is therefore dismissed, with costs.”
    From a judgment entered in accordance with the opinion and findings plaintiff appeals.
    Argued before Dykman and Pratt, JJ.
    
      Charles S. Noyes, for appellant. Lewis E. Carr, for respondents.
   Dykman, J.

The object of this action is to restrain the defendant from entering upon and using the land in question, and for the recovery of $1,000 damage for wrongfully using the land for railroad purposes. The trial was without a jury, before a judge, and he has rendered a judgment in favor of the defendant, from which the plaintiff has appealed. The trial judge found the facts in favor of the defendant, and found that the company was in lawful occupation and use of the premises in question, to the extent that the same had been used and occupied by the defendant. Such findings required a judgment for the defendant, and they are all supported by the evidence and justified by the law. The judgment should therefore be affirmed, with costs.  