
    George G. Freer and Minnie Freer Searles, Appellants, v. The Glen Springs Sanitarium Company and Others, Respondents.
    Third Department,
    March 10, 1909.
    Real property—deed—restrictive covenant — grant of land for use as cemetery—forfeiture.
    Forfeitures are not favored, and where the terms of a deed without violence can be construed .as a covenant, such construction will be adopted rather than one treating them as a condition subsequent.
    Where two persons made an agreement whereby certain land owned by one of . them was to be conveyed to a village for cemetery purposes in consideration of the payment to the owner by the other of one-half its value, and upon the carrying out of said agreement a deed was given to the village which conveyed land “ for the purpose of a village cemetery ” with the right to sell the same in parcels for burial lots, but contained no provision for re-entry in case of the use of the land for other purposes, the heirs of the grantor cannot maintain ejectment against the village because of the diversion of part of the land from use as a cemetery.
    This is so although the deed recited that the land was to be used for such purpose only, that the village was ■“ required as a condition of this conveyance to devote said premises ” to use as a cemetery "and that the village accepted the grant for the purposes stated and by such acceptance covenanted to carry out each of the conditions subject to which the deed was given,
    Appeal .by the plaintiffs, George G. Freer and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Schuyler on the 8th day of September, 1908, upon the decision of the court'rendered upon a trial at the Schuyler Trial Term, certain questions of fact having . been submitted to the jury.
    
      Irving W. Cole, for the appellants.
    
      C. M. Woodward and O. P. Hurd, for the respondents.
   Kellogg, J.:

.The plaintiffs, two of the three heirs at law of George W. Freer, bring this action of ejectment to recover about one and one-tenth acres of land, being a part of a parcel containing about twenty acres, which was conveyed by said Freer and wife to the village of Watkins April 14, 1865, upon the ground of a failure to perform an alleged condition subsequent contained in said conveyance. It is clear that the premises were conveyed to the village for cemetery purposes and that the one and one-tenth acres have been conveyed by the village to the Glen Springs Sanitarium Company and are used and occupied by it as a part of its park surrounding its sanitarium buildings. The trial court held there was no condition subsequent contained in the deed and that the plaintiffs had no title to the property in question.

The circumstances under which the deed was executed to the village are recited in the deed itself which, after naming the parties, recites: “ That whereas said George G. Freer and John Magee of Watkins, '1ST. Y., heretofore and on or about the 6th day of August, 1864, entered into an agreement whereby said John Magee promised to pay George G. Freer as a donation to said village of Watkins, one thousand one hundred dollars * * * estimated to be one-half the value of certain premises hereinafter described and hereby intended to be conveyed, which were in said agreement proposed to be granted to the said Village of Watkins for cemetery purposes and said Freer in consideration of said promise of said John Magee promised to donate to said Village of Watkins an equal amount by conveying said premises free of charge, and for a nominal consideration to the said Village of Watkins as grounds for a village cemetery and whereas said John Magee has paid to said George G. Freer the said amount of one thousand and one hundred dollars in accordance with his said promise, now,

“Therefore, the parties of the first part in fulfillment of the agreement hereinbefore mentioned and in consideration of the premises and the sum of one dollar to them paid have sold and by these presents do grant and convey to the said party of the second part in perpetuity for the purpose of a village cemetery for said Village of Watkins,” the property described.

It thus appears that the grantor in the deed received $1,100 as the consideration therefor and he was deemed as contributing an equal amount to the village by the transfer of this property free of charge. The agreement fails to recite any understanding that the property in any event was to return to the donors, or if for any reason the grant failed what was to be the position of Magee with reference to the $1,100 which he had paid. It was obviously never intended by any one that for an alleged breach of a condition subsequent Freer could again become the owner of the land for which Magee had paid him $1,100 on account of the. village. The agreement. recited shows that the property was to be conveyed for cemetery ¡purposes, but there is an entire absence of any provision which implies that any. condition' subsequent is to be introduced in the deed. If the terms of the agreement only had been placed in the deed, it is evident that Freer and his heirs could not recover the property in case it was used for other than' cemetery purposes. Apparently, from the agreement itself, Freer and Magee had each divested themselves forever of the $1,100 which they contributed to the cemetery lot and the village became, the owner of it free of charge except the understanding that it took it for a village cemetery.

The following clauses in the deed1, under other conditions, might tend somewhat'to suggest that a condition subsequent'was intended. We. have already .quoted the'provision in'the grant itself: ■ “In perpetuity for the purpose of a village cemetery,” “ And it is hereby mutually understood and agreed that all the: above described reservation shall be used for. burial or cemetery purposes only, but the party Of. the second part rnay notwithstanding this restriction appropriate and dedicate ” a certain part for a soldiers’ monument. And in the habendum clause: To hold the said lands and premises to the said party of the second part in perpetuity for the purposes and upon the conditions herein expressed and to the successors in office of said Trustees as representatives of the said party of the second part.” - . ■

;'' “ And the said, party Of ¡the second part are hereby directed arid required as1 a condition of this conveyance to devote said premises thus conveyed to the purposes of a Cemetery Of place for the burial of tlie dead 'and to no other purpose- (except as herein provided for a Soldiers’ Monument) forever' and in furtherance of that object to sell, the same in parcels for burial lots in their discretion ■ at such reasonable rates as they'may deem .expedient and for the accommodation of all and to expend the entire proceeds- of such sales in laying out, fencing and improving said’ premises and. Cemetery.”

“ And said party of the second part by the trustees of - the Village of Watkins and their successors, in office on behalf of said Village of Watkins hereby accept the above grant for the purposes herein stated and by such acceptance hereby agree and covenant in consideration of the premises that said party of the second part by its Trustees and successors as aforesaid will faithfully observe and early out: according to the true intent and meaning hereof each and every of the aforesaid requirements, conditions and directions subject to which this conveyance'is given.”

The deed is signed by the grantor and his wife and the trustees of the village under the seal thereof.

These different provisions in the deed must, however, be' construed Avith reference to all of its other provisions and the act which was being done by Fveer and Magee as recited in their agreement. If a condition subsequent Avas intended to be created, a provision for re-entry in case of breach would have made the meaning plain. The absence of such a provision leaves the court to gather from the instrument itself what Avas the intention and understanding of the parties and what is, therefore, the true construction of the deed. Forfeitures are not favored, and where the terms of a deed without violence can be construed as a covenant, such construction will be adopted rather than the one treating it as a condition subsequent by which the grantor can again obtain the granted property.

We find'here four circumstances which indicate that a condition subsequent was not within'the intention of any of the parties: (1) The terms of the agreement between Magee and Freer. (2) The grantors received a substantial cash consideration for the deed. The village took the property, not as donee from Freer, but as a purchaser, The consideration was present and did not rest in the future. If the grantor can use the covenants in the deed as a condition subsequent, lie can thereby obtain the land and one-half of the full value in addition thereto; the village loses the land and also the donation from Magee. There is no provision in the deed itself or in the agreement between Freer and Magee by which Magee in any event could- benefit by the breach of an alleged condition subsequent. (3) The absence of any provision for re-entry. (4) The right of the village, to sell burial lots is inconsistent with the idea that, by fault of the village in the future, the grantee of a . family burial lot may lose it and Ins improvements thereon.

It is not necessary to discuss what particular. remedy may be proper to require the observance of the covenants contained in the deed. We are only concerned , here with the question whether the plaintiffs own the property and can maintain ejectment therefor. The trial court properly held that there was no condition subsequent in the deed, and that the plaintiffs liad no title to the property in question. The judgment should, therefore, be affirmed, with costs.

Judgment unanimously affirmed, with costs. 
      
      
        Wc.
      
     