
    Miguel Garcia, Executor, App’lt, v. Mary R. Callender, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed January 13, 1891.)
    
    Deed—Covenant by grantee to give grantor the right oe “pre-' EMPTION.”
    A deed contained a covenant that the grantor, his heirs, etc., “at any time shall have the right of pre-emption of the premises described * * * for the sum of twelve thousand dollars.” Held, that the term meant, not that the grantor could at any time require a reconveyance on tendering $12,000, hut that when the owner desired to sell the property or offered it for sale or when it was put upon the market again at the price of $12,000, then the grantor should have the first right of purchase or the option to buy it in preference to any one else at that price.
    Appeal from judgment of the supreme conrt, general term, first department, affirming judgment entered; upon trial at special term dismissing plaintiff’s complaint
    
      John J. Weekes, Jr., for app’lt; Henry II. Anderson, for resp’t
    
      
       Affirming 24 N. Y. State Rep., 654.
    
   O’Brien, J.

The plaintiff brought this action to compel the defendant to specifically perform a covenant contained in a deed of real estate executed by the plaintiff’s testator to the defendant’s ancestor, or to recover his damages for breach of the covenant. On the 24th of October, 1854, John Garcia, the plaintiff’s-testator, conveyed to Jane J. Callender, the defendant’s mother, in consideration of $12,000, a dwelling house on Twentieth street,, between Fifth and Sixth avenues, in the city of Mew York. The defendant is in possession of the premises as heir-at-law of the grantee in this deed. The conveyance contains covenants of seizin and warranty, and then follows the special covenant which gave rise to this action: “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 said party of the second part by the party of the first part, at and after the same price as the above mentioned consideration for the conveyance, to wit: the sum of twelve thousand dollars ($12,000), and the said party of the second part for herself, her heirs and assigns, doth forever covenant and agree to and with the said party of the first part, his executors, administrators and assigns, that she, the said party of the second part, will not make, or cause to be made, any change or alteration in the exterior appearance of the building now erected on the premises above described that will destroy or alter its present uniform appearance with the buildings adjoining on each side.”

It is alleged in the complaint that the premises are now worth the sum of $35,000, and it is found by the trial court that before the commencement of this action the plaintiff tendered to the defendant $12,000 and demanded a conveyance of the same to him, which was refused; also that the defendant had never offered the property for sale, that it was not for sale and that defendant did not intend to sell'it and that its value was $28,000. Mo proof was given upon the trial to show what was the purpose of the parties in inserting this peculiar covenant in the deed, and we must therefore give construction to it from the language alone. In Randall v Sanders, 87 N. Y., 578, it was held that in a sale and conveyance of lands it was competent for the grantor and grantee to contract with each other for a re-sale, but in that case the instrument provided in terms for a conveyance of the property within a period named and for a specified sum. In this case the right given to the grantor by the words of the covenant is that of “ preemption of the premises ” for the price of $12,000, and the question is what did the parties mean by that term; for this covenant must be construed; like all other contracts, according to the intention of the parties to be gathered from the language used and all the surrounding circumstances.

Whatever right was given by the covenant, was to be exercised “ at any time,” and the plaintiff contends that after the lapse of thirty-one years, when the parties to the deed are both dead, he has the right to tender the $12,000 and compel a conveyance to him though the property is concededly worth considerable more than double the sum tendered. If the covenant is fairly susceptible of some other construction than the one urged by the plaintiff it ought to be given to it The term “ pre-emption ” at common law was used to express the right of the king through his purveyors to buy provisions and other necessities for the use of his household at an appraised value in preference to all others, and even without the consent of the owner; and also of forcibly impressing the carriages and horses of the subject to do the king’s, business on the public roads in the conveyance of timber, baggage' and the like, however inconvenient to the owner, upon paying him a settled price. 1 Shars. Black. Com., 287; 1 Steph. Com., 8th ed., 539 ; Webster’s Diet., Pre-emption.

In international and commercial law the term is used as expressive of the right of a nation or country to detain the goods of strangers passing through its territories or seas in order to afford to its subjects or citizens a preference of purchase. Chitty Com. Law, 103; Manning’s Law of Nations, 393, 395; 2 Bouv. Law Diet., 361.

It is quite safe to conclude that when the convenant in question was made, the parties to it must have used the word in some other sense and for the purpose of expressing some other idea. In this country the term has been given a peculiar meaning in common parlance as well as in the practice of the departments of the government of the ' United States charged with the duty of administering the regulations of congress for the sale of the public lands to settlers. The right of a person to purchase some part of the public lands at a specified price, when opened for sale, in preference to any one else is called the right of pre-emption in the practice of the government and in the decisions of the United States. The term is used- here to express the idea that some one has the first right to purchase when the land is offered for sale, or the option of buying first. This meaning of the word is recognized in the acts of congress and in numerous cases. U S. v. Fitzgerald, 15 Peters, 407; Wilcox v Jackson, 13 id., 498; Lytle v. State of Arkansas, 9 How.,U. S., 533; Cunningham v. Ashley, 14 id., 377; Barnard's Heirs v. Ashley's Heirs, 18 id., 44; Garland v. Wynn, 20 id., 6; 2 Bouv. Law Dict., 561; Rev. Stat., U. S., § 2269, § 2273.

In this state grants of land under water heretofore made by the state to the city of New York were subject to the condition that when the city offers such lands for sale the owner of the adjacent uplands shall have the first right to purchase the same. This peculiar right of the owner of adjacent uplands is called by the courts and in common language the right of pre-emption. Mayor, etc., v. Hart, 95 N. Y., 456; Furman v. The City, etc., 5 Sand., 43; Towle v. Palmer, 1 Robt., 437, 446. We think that it was in this sense that the term was used in the covenant in question. It meant, not that the grantor could at any time require a re-convey-once on tendering $12,000, but that when the owner desired to sell the property or offered it for sale, or when it was put upon the market again at the price of $12,000, then the grantor should have the first right of purchase or the option to buy it in preference to any one else at that price.

If this is the correct construction to be given to the words of the covenant then the plaintiff was not entitled to recover.

The judgment should be affirmed, with costs.

All concur, except Ruger, Oh. J., and Earl, J., not voting.  