
    John A. Post et al., Resp’ts, v. Matilda Weil, as Executrix, etc., et al., Appl’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 8, 1889.)
    
    1. Deed — Restriction as to use ob land — When not a condition subsequent.
    Whether a provision in a deed, that the premises may never he "used or occupied as a tavern,” creates a condition subsequent or a covenant against grantor must depend upon what was the intention of the parties; technical words may be overlooked where they do not inevitably evidence the intention of the parties.
    3. Same.
    The clause in question, in the case at bar, was intended as a restriction created for the benefit of the adjoining property, expressed in the strongest terms, and was enforceable as a covenant running with the land, and was not a condition subsequent, imposed for the personal benefit of the grantors and their heirs.
    Appeal from judgment of general term, first department, affirming judgment in favor of plaintiff recovered on trial at special term.
    
      James C. Carter, for app’lts; William M. Evarts, for resp’ts.
    
      
       Affirming 16 N. Y. State Rep., 1000.
    
   Gray, J.

This action arose out of the refusal of the appellant’s testator to complete his agreement to purchase certain lots of land in the city of New York.

Their sale had been at public auction, and by its terms an indisputable title was offered to purchasers. Weil, the appellants’ testator, refused to accept the deed which was tendered to him on the ground that by the provisions of a former deed, on record, and through which the title of the vendors was derived, the property, of which these lots were part, was subject to the operation of a condition subsequent, to wit.: a condition that no part of the premises should ever be used or occupied as a tavern. Whether this objection was sound and available to Weil is the question which is involved in this appeal.

After a careful consideration of the facts, and upon a review of the whole situation, I am unable to find any serious difficulty in reading the clause in question as a covenant, whether we consider it on principles of strict law or of common justice. Mere words should not be and have not usually been deemed sufficient to constitute a condition, and to entail the consequences of forfeiture of an estate, unless from the proof such appears to have been the' distinct intention of the grantor and a necessary understanding of the parties to the instrument. Nor should the formal arrangement of the words influence us wholly in determining what the clause was inserted to accomplish; but, in this, as in every other case, our judgment should be guided byzwhat was the probable intention, viewing the matter in the light of reason.

The operation of this clause, as contended for by the appellant, would have been to effect a great injustice; whereas if, as we read it, it was intended as a covenant for the protection of property, no prejudice could accrue to anyone and the purpose in the original grant would be respected and preserved in all its integrity. I am aware of the difficulty which attends the discussion of the legal question involved in this case and also of the importance which is given to it, by the fact that the courts below have held the clause in the deed to be a condition subsequent; while they have enforced the performance of the agreement of purchase upon other grounds. I shall, therefore, briefly review the facts, as they appear in the record before us, in order better to demonstrate that the conclusion to be drawn from them, as to the probable intention bf the parties, is that the clause under consideration could only have been inserted as a covenant.

The premises in question were formerly part of a large estate lying in the upper portion of New York island, and known as “Monte Alta.” That estate and an adjoining estate, known as Claremont,” were owned and occupied as farms and country residences by one Michael Hogan. In 1807, he entered into an agreement in writing with one Jacob Mark for the sale to him of the Monte Alta estate for a sum of $16,000, and the agreement contained this clause: “upon the special condition that no part of the land or buildings thereon should ever be used or occupied as a tavern.” In 1811, four years afterwards, Hogan and wife deeded to Robert Lenox, Jacob Stout and John Wells, upon certain trusts, both of said estates; that of Monte Alta, however, subject to the agreement with Mark. These facts are disclosed, not by the agreement and deeds themselves, for they do not appear to have been recorded and they were not produced, but from subsequent deeds which were made by these grantees or trustees •of Hogan and the Hogans in conveyance of the properties to others. We are without information as to the reason for the non-completion of Hogan’s agreement with Mark from the year 1807, when it was made, until the year 1811; and we know nothing concerning the nature of the trusts upon which Lenox and his associates in the trust referred to received and held the properties. A few months after Hogan’s conveyance to Lenox and others, “ Monte Alta ” was conveyed to Mark by a deed, in which were joined, as grantors, Hogan and wife and the said trustees. That deed recited the facts of the agreement of Hogan to sell to Mark and of the conveyance by Hogan and wife to Lenox and others 'as trustees, subject to that agreement.

It conveyed the fee of the premises, free of encumbrances, and with covenants of title and warranty, but with the following provision, contained in the habendum clause, viz.: provided always and these presents are upon this express condition, that the aforesaid premises shall not, nor shall any part thereof, or any building or buildings thereon erected, or to be erected, be at any time hereafter used or occupied as a tavern or public house of any kind.” The Hogans’ grant was of their right, title, interest, dower and . right of "dower, etc., in or to the premises described, while that of Lenox and others was directly of the premises themselves. It is quite probable that the union of the Hogans as grantors was to perfect the record, title, which the absence from the records of their deed to Lenox and others might affect, and to prevent any question from being raised as to the validity of Mark’s title. In the conveyance subsequently made, in 1812, of the Claremont estate, the grantors were the same as. in that of Monte Alta, and the deed was similar in form, but it did not contain the clause respecting the use of the premises, which I have quoted from the habendum clause in the deed of the Monte Alta property. In 1816 a release of that restrictive clause was, as matter of fact, executed, and the title was thus freed from any question which might arise by reason of its existence, but as this release had not been recorded and was lost at the time of the sale, and of the tender of the deed by the vendors, and was not discovered and recorded until about two years afterwards, and after the commencement of this suit, it cannot be considered in determining upon the right of Weil to reject the title when the deed was tendered to him. He was entitled to rest upon the state of facts, as it was proved to be, when he refused to accept the deed. In 1819 Lenox and others executed to Hogan an instrument, which, after reciting that they had settled and accounted with him touching the trust property by him conveyed to them in 1811, “ as far as the same hath been sold, appropriated, collected, received or disposed of by them,” assigned and conveyed to him whatever remainder there might be of the trust property, and Hogan by the same instrument released them from all claims respecting the execution of the trusts. In 1821 Joel Post became the owner of both of these estates, and he and his heirs held the same from that time until the sale by the heirs in 1873.

These are all the material facts in the case. When this purchaser objected that the estate was subject to a common law forfeiture, because of the condition subsequent reserved in the deed to Mark, the vendors answered that the tripartite deed to Mark did not reserve a condition, on the grant in fee, upon which a forfeiture would enure to the grantor or his heirs in case a tavern-should, at any time, be kept on the lands comprising the Monte Alta estate; but a covenant, which, running with the land, would, while kept alive, prove an equitable protection against any injury from its breach m favor of any subsisting interest entitled to insist upon a performance of the covenant

In that construction of the clause in the Mark deed we think the plaintiffs were right, and, as that conclusion would dispose oí the whole case, no other of the answers, which they make in defense of their title, need be consided.

I understand the appellants’ counsel to concede that his appeal must succeed on the sole point that the reservation pointed out in the deed created a condition subsequent. And, in fact, it must be so; for if it created a covenant the union of both of the estates in Joel Post in 1821 would have the natural and legal result of extinguishing the covenant

Although the words of the clause in question are apt to describe a condition subsequent, reserved by a grantor, we are in no wise obliged to take them literally. In the consideration of what, by the use of these words, was imported into the conveyance, we are at liberty to affix that meaning to them which the general view of the instrument and of the situation of the parties makes manifest. Whether they created a condition, or a covenant, must depend upon what was the intention of the parties; for covenants and conditions may be created by the same words. In order that a covenant shall be read from the words of an instrument, they need not be prescise, nor technical, nor in any particular’ form. In Bacon’s Abridgement, covenant A, it is said: “ The law does not seem to have appropriated any set form of words which are absolutely necessary to be made use of in creating a covenant”

In Sheppard’s Touchstone, pp. 161, 162, it is said: “ there need not be any formal words, as ‘covenant,’ ‘promise’ and the like, to make a covenant on which to ground an action of covenant; for a covenant may be had by any other words.” Chancellor Kent, in his Commentaries, YoL iv, 132, in speaking of whether a clause in a deed shall be taken to create a covenant, or a condition, says: “ Whether the words amount to a condition, or a limitation,_ or a covenant, may be matter of construction depending on the contract. The intention of the party to the instrument, when clearly ascertained, is of controlling efficacy; though conditions and limitations are not readily to be raised by mere inference and argument.” The Chancellor sums up the matter in this language: “ The distinctions on this subject are extremely subtle and artificial, and the construction of a deed, as to its operation and effect, will, after all, depend-less upon artificial rules than upon the application of good sense and sound equity to the object and spirit of the contract, in a given case.” Lord Mansfield said, 1 Burr, 290, that no particular technical words are requisite towards making a covenant and Lord Eldon said, 15 Yesey, 264, that covenants may be for almost anything. That they have frequently been inserted in conveyances, to maintain the eligible character of property adjoining the parcel conveyed by protecting it against the creation of nuisances, or of offensive structures, or against the carrying on of an injurious or offensive trade, is a familiar fact. It seems unnecessary to cite from the opinions of judges or of the writers upon this subject of jurisprudence; for there is a general consensus in opinion among them, that the question is one always open to the determination most consistent with the reason and the sense of the thing. Reference, whether it be to the earlier or. later reports, fails to aid us in deducing from them a defined principle of construction. Many, if not most, of the early cases have been those turning upon the construction of clauses in leases, and, in each case, so far as the examination I have been able to give enables me to say, the court construed the clause as the circumstances and facts of that particular case seemed to demand.

I would not pretend to reconcile all the decisions which have been made upon the subject, but I readily extract the principle that technical words may be overlooked where they do not inevitably, evidence the intention of parties. I think the tendency of the law has been to assume towards this vexed question, as-towards others, which have come down from the days of the old -common law, a more scientific attitude. So, if the only reason for construing a clause is in the technical words which have been used, the court may disregard them in performing the office of interpretation. If we can construe this clause as an obligation to abstain from doing the thing described, which, by acceptance of the deed became binding upon the grantee as an agreement enforceable in behalf of any interest entitled to invoke its protection, I think we are in conscience bound to give that construction, and thereby place ourselves in accord with that inclination of the law which regards with disfavor conditions involving forfeiture of estates. In this connection it may be noted that there is no clause in the deed giving the right to re-enter for conditions broken. While the presence of such a clause is not essential to the creation of a condition subsequent, by which an estate may be defeated at the exercise of an election by the grantor or his heirs to re-enter, yet its absence to that extent frees still more the case from the difficulty of giving a more benignant construction to the proviso clause. The presence of a re-entry clause might make certain that which, in its absence, is left open to construction. The absence of such a clause may have its significance in connection with the circumstances of the case and the intent to be fairty presumed therefrom.

Now, the first significant feature of this case which may be referred to in determining the intention is the agreement between Hogan and Mark. That was the agreement by which the one was to sell and the other to buy “ Monte Alta,” In it was inserted a “ special condition that no part of the land, or buildings thereon, should ever be used or occupied as a tavern.” That was the agreement or understanding of both parties as to a restriction upon the use the premises might..be put to.

Then we are to presume, from what took place in the conveyance afterwards by Hogan to the trustees of both the Monte Alta and Claremont estates, and their subsequent accounting with him, that Hogan had become financially embarassed and had sought this equitable mode of settling with his creditors. But, when the trustees carried out the agreement which Hogan had made with Mark, and deeded the Monte Alta property to Mark, they incorporated in their deed the restriction which had been agreed to in the contract as to the use of the property. Now the obvious and only purpose which Hogan could have had in view, when the contract was made, was to protect the adjacent property, which he then owned, from being injured by the vicinity of an undesirable structure, or business. I think we all will agree that the presumption here, as in every other case where a restriction is inserted in a deed against undesirable structures or trades, is that the insertion was for the purpose of protecting rights which the grantor had in adjacent property. In this case the clause obviously was for the benefit of the Claremont estate. This view is reinforced by the fact that when the trustees came to sell the Claremont property no such condition was inserted in that deed. When the trustees disposed of the Monte Alta property, Hogan had ceased to have any interest in it, or other than in having it bring all that could be obtained from a sale of the properties, in order to free himself from his embarassments. When the legal estate became vested in the trustees their duty was to .make the sales yield all' that was possible. They had no interest to sub-serve by conveying the property subject to any condition subsequent The effect, however, of a covenant in the deed to Mark, covering a restriction like that in the agreement of the parties,, would be to enhance the market value of the other property, by preserving to the whole an eligible character. An intention that the restrictive clause should operate as a condition subsequent seems hardly supposable, undeiythe circumstances. Except we take the words literally, no reason suggests itself for that construction. Hogan. had no legal interest in the property at the time of the conveyance. What interest' coiild he then have which his trustees might be supposed to subserve, or which he might be supposed to insist upon,'in securing a reverter of the one Monte'AMa estáte to himself or Ms heirs? None is apparent, and I say, theiefore, that 'the reason and the sense of the thing indicate that the clause is to be read as a covenant.

In constraing a clause which imports into an instrument a restriction, or imposes an obligation not to do something, reliance' should be placed upon the known or supposable aim of the grantor, or upon the sense of' his act. So long as technical words are to be deemed unavailing to control interpretation, we should disregard them, and have resort to what may furnish some evidence of the underlying intention. In speaking of the sense of the act, I refer as well to' the apparent object to be attained as to-the mode resorted to in order to effect it. What reason have we to justify us in attaching to these particular words so technical si meaning, and to freight them with such serious consequences, when it appears that no such interest exists in the grantors as demands a reservation of such a condition, or makes it in the slightest degree important ? Where does the' necessity exist for such a, technical construction ?

' Here the grantors of the legal title had no- interest in creating a. reverter to themselves, for they were mere trustees. Their grantor,, whatever his beneficial interest in the trust, had ho apparent interest to subserve, which is pointed out or which is discoverable,, in planning a reverter of the estate for a breach of condition. There was no ihterest which was not adequately met by the creation bf a covenant, or limitation in trust that the property should not be used for the oné certain purpose mentioned. I •think it more agreeable to reason, as it is to the conscience, and it. well comports with the character and origin of this deed, if we say that the office of this clause was simply to restrain the generality of the preceding clause. See Chapin v. Harris, 8 Allen, 594. The words “provided always, and these presents are upon this express condition,” seem to me to serve the purpose of restricting that use of the premises which was, of course,, general and unrestricted under the grant. They do not import, any new and separate idea, and I think the rule is a safe one that-words alone should not be deemed to create a condition subsequent and to be capable of importing possible future forfeiture of estate, except where they do introduce some new clause, the sense of which is not referable to and in qualification of some preceding clause, and evidences some part of the consideration for the grant of the property by the imposition of an obligation upon the grantee. Looking at these words may we say, as they stand in the deed, that they are conditional in sense, when they in reality serve to qualify the generality of the grant in the language which precedes them ? I think we cannot, in reason.

In Avery v. N. Y. C. & H. R. R. R. Co., 106 N. Y., 142; 8 N. Y. State Rep., 612, we have a late exposition of the views of this court upon the effect to be given to language in deeds purporting to convey upon express conditions. In that case it was sought to enjoin the defendant from maintaining a fence upon a strip of land dividing its depot premises from the plaintiff’s hotel premises, and from thus blocking up a passageway between the hotel and depot The land, upon which defendant built the fence, was conveyed by deeds which contained the following provisions: “ This conveyance is upon the express condition that the said railroad company, its successors or assigns, shall at all times maintain an opening into the premises hereby conveyed opposite to the Exchange hotel, so-called, being the plaintiff’s premises, adjacent to the premises hereby conveyed, etc. * * *” The grantors in these deeds had acquired title under a will to the hotel property, and their testator had been the grantor of the property used by the defendant for its depot. The defendant denied the right of the plaintiff, to whom the hotel property had been leased by the devisees, to maintain the action; alleging that the language of the provision in the deeds created a condition subsequent, which could only be taken advantage of by the grantors and their heirs. The plaintiff claimed that it must be construed as a covenant.

Judge Peckham, delivering the opinion of the court, said: “We incline to the construction contended for by the plaintiff. The fact that the deed uses the language ' upon condition,’ when referring to the conveyance by the grantors, is not conclusive that the intention was to create an estate strictly upon condition. * * * Construction may frequently be aided by reference to all the circumstances surrounding the parties at the time of the execution of the deeds, because the court is thus enabled to be placed exactly in their situation, and to view the case in the light of such surroundings.”

After referring to the facts, he continues: “All these facts would lead one to the unhesitating conclusion that the language used in those deeds in 1857 was for the benefit of the hotel property, and was not meant to create a condition subsequent. * * * It was intended to be an agreement or covenant between the parties, running with the land, providing for this access or right of way, so as to continue or enhance the value of the hotel property by providing for such easy access to it from defendant’s depot for passengers and baggage. See Stanley v. Colt, 5 Wall., 119; Countryman v. Deck, 13 Abb. N. C., 110.

Courts frequently, in arriving at the meaning of the words in a, written instrument, construe that which is in form a condition, a breach of which forfeits the whole estate, into a covenant on which only the actual damage can be recovered. See Hilliard on Real Property (4th ed.), p. 526, § 13; 2 Washburn on Real Property (3d ed.), chap. 14, subd. 3, p. 3, et seq."

The avenue of reasoning, by which the court reached their ■conclusion in that case, is the one which ought to lead us to our conclusion now; that the clause in question, in the case at bar, was intended as a restriction created for the benefit of the adjoining property, expressed in the strongest terms, and which was enforceable as a covenant running with the land; and was not a condition subsequent imposed for the personal benefit of the grantors and their heirs.

For the reasons stated, the judgment appealed from should be affirmed, with costs.

All concur (Andrews, J., in result), except Ruger, Ch. J., not voting.  