Whittemore v. Woodlawn Cemetery

Hatch, J.: We think the questions presented by this submission may be solved with approximate accuracy when the title under which' the cemetery association holds is clearly understood. By the provisions of the statute the land is dedicated, when acquired by the corporation, to cemetery purposes. As between the purchaser of a lot and the association, the former only acquires an easement in the lot so purchased for burial purposes. Such easement, however, is irrevocable and continues during the time that the plots or lots continue to be used for such purpose. The title to the land, however, remains in the cemetery association, and it holds the legal title subject to the exclusive right of the lot holder. (Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 503.) No question, however, arises in this submission out of the relations existing between the owner of the burial plot and the corporation or the certificate holder. The whole question is, therefore, to be solved based upon a consideration of the rights and liabilities of the corporation upon one hand and the certificate holders upon the other. The corporation was authorized by the statute (Laws of 1847, chap. 133, § 4) to acquire for cemetery purposes 200 acres of land, and by special act (Laws of 1864, chap. 325) was further authorized, upon certain conditions, to take and hold for the same purpose not exceeding 250 acres of additional, land. The corporation was organized and the lands acquired by. virtue of the provisions of these two acts. The question, therefore, is, what title did the association acquire by virtue of the contracts of conveyancé. By the provisions of section 4 of chapter 133 of the Laws of 1847 it is provided that the lands acquired by the corporation are “ to be held and — 262 — occupied exclusively for a cemetery for the burial of the dead.” Then follows provision for surveying and subdividing the same into lots or plots and the laying out of avenues, paths, alleys and walks, as the trustees of the association might determine upon, for the purpose of carrying out the provisions of the act under which the land was acquired. The conveyance which was taken by the cemetery association follows the terms of the statute, recites the purpose for which the lands were conveyed, and states, as the consideration therefor, that the said lands shall from' time to time, as may be required, be surveyed and subdivided into lots or plots for burial purposes, and avenues, paths, alleys and walks may be constituted for ornamental and other purposes, the grantors being entitled to have and receive as a consideration for the conveyance one-half of the proceeds of all sales of plots and lots. It is, therefore, evident that there was attached to this conveyance, both by its terms and by the provisions of • the act under which the lands were acquired, a condition subsequent which, upon a failure to perform, might defeat the conveyance and authorize a re-entry. It was said in Rawson v. Inhabitants of School Dist. No. 5 in Uxbridge (7 Allen [Mass.], 125) that “ Where a deed is made in express terms for a specific purpose, or in consideration of an act to be done or service rendered, it will be interpreted as creating a conditional estate. But this is an exception to the general rule, and is confined to cases where the subject-matter of the grant is in its nature executory, as of an annuity to be paid for service to be rendered or a right or privilege to be enjoyed; in such case if the service be not performed or the enjoyment of the right or privilege be withheld which formed the consideration of a grant, the grantor will be relieved from the further execution of the grant, to wit, the payment of the annuity.” In the case cited, one Daniel Taft granted to the inhabitants of the town of Uxbridge a burial plot by a deed which recited “ for and in consideration of the love and affection I bear to ye town of Uxbridge, and for diverse other valueable considerations me moveing hereunto, said land being improved for a burying place; to have and to hold the said given and granted premises, with all ye. appurc&s, privileges and commodities to the same belonging or in anywise appertaining, to the said town of Uxbridge forever, to their only proper use, benefit and behoofe, for a burying — 263 — place forever.” It was held that this deed did not create a condition subsequent for the reason that the granted premises were not to be so used as to inure specially to the benefit of the grantor and his assigns, but was in its nature general and public; that there were no words indicating an intent that the grant was to be void if the declared purpose was not fulfilled, and that as it appeared that the premises granted had been used for a burial place at the time of the execution of the deed, it might have been, so conveyed for a consideration. The town having removed the dead and devoted the land to school purposes, it was held that such use did not defeat the grant, and no right of action could be maintained by the heir of the grantor for a re-entry for breach of the condition of the deed. But the case clearly recognizes that, where the whole consideration for the grant is the accomplishment of a specific purpose, and the enjoyment of the estate granted is made dependent upon the performance of the act for which the land is taken, such a deed is a conditional one and may be defeated for failure to comply with the condition. In the present case, both the grant and the statute provide and require that the land conveyed shall be devoted to a specific purpose, which inures to the benefit of the grantors and which in its nature is executory; therefore, the same is conditioned upon the performance of the act which furnishes consideration for the grant. It is true that conditions subsequent, by which an estate is defeated, are not favored in the law, but where the condition is clear and unequivocal and its performance remains executory, a condition subsequent operates wfith as much force as any other and is to be supported and upheld. The very necessity of this case required that the condition upon which the grant was founded must be subsequent, as .it remained executory,, and, consequently, compliance therewith by execution was annexed to the substance of the grant, and the estate would be defeated if compliance were not had with its terms. (2 Washb. Real Prop. [5th ed.] 2; Tied. Real Prop. [2d ed.] § 271 et seq.; Laberee v. Carleton, 53 Maine, 211.) It cannot be doubted in the present case but that if this association had attempted to make conveyance of these lands for other purposes than that of burial in the method specified by the statute and by the grant, it would be in violation of the condition which — 264 — was the consideration of the grant, would create a forfeiture and authorize a re-entry by the grantor or his heirs. Such conveyance would hot only violate the terms of the grant, but also the terms of the statute. Good title could not be acquired by a purchaser, as he would necessarily be chargeable with notice of the condition which was attached to the grant and under which the grantor held the same. Such attempted disposition of the property might be enjoined at the instance of the grantor or any person having a beneficial interest in the fulfillment of the condition. Such beneficial interest exists in this case in favor of the grantor and the certificate holders, and is of such a character as authorized them to insist, upon the performance of the same. . All grants of land, with few exceptions, are held subject to the exercise of the sovereign power of the State, the only limitation' being that when the State exercises such power or authorizes it® exercise, compensation for the property taken thereunder must be' made. The-condition of this land was such that at the time of the' exercise of the' sovereign power it was subject thereto, and it of course must be held that both parties granted and received this, property subject to its exercise, This being the condition under which the lands were held, the corporation could not be charged, with a'breach of the condition under which it held'the land so as to-work a forfeiture of the grant and authorize a re-entry for the breach. It is clear, however, that the rights of the grantors and also of the corporation in the land were not defeated by reason of such comdition. The purpose for which the land was to be devoted had. failed. It was rendered impossible of performance by an act of supreme power, but such condition did not deprive the parties of right to compensation for their interest in the land. Héither did it authorize the appropriation of the whole of the proceeds by one to the exclusion of the other. Such result would be manifestly inequitable. • It is a well-settled equitable rule to grant relief in case of forfeiture where the breach arises out of an accident and where the damages resulting "therefrom can be accurately estimated' by the: court: Under such circumstances equity will prevent a forfeiture and decree:in place thereof compensation in damages. (Tied. Real — 265 — Prop. [2d ed.] § 279; Livingston v. Tompkins, 4 Johns. Ch. 415; Baxter v. Lansing, 7 Paige, 350; Stone v. Ellis, 9 Cush. [Mass.] 95.) The rule is not different when there is a breach of a condition arising out of the exercise of sovereign power. Under such circumstances the rights of the parties are to be protected by the application of equitable principles and the effect of the forfeiture will be admeasured in money according to the respective rights of the parties where that may be done. There is not the slightest difficulty in this case in precisely and accurately determining the rights of the parties in and to this land or to the substituted proceeds. The lend itself could no longer be devoted to cemetery purposes. If it had been, the rights of the parties in and to the proceeds were equal; having been sold, the respective rights and interests attach to the fund. The basis of measurement rests in the fact that the fund has taken the place of the land ; and as the rights were equal in the land, such rights so continue and become equal in the fund. It is not a question of apportioning between lots and plats or the laying out of streets and alleys, because the land has been sold. The amount is fixed and certain and the rights of the parties are equal in the premises. Under such circumstances, a division of the money answers to each right and completely and fully protects- both. The fact that under the grant a portion or the whole of this land might have been laid out in streets and alleys, from which the plaintiff would have received nothing, is not of consequence; it is a sufficient answer to say that it was not so laid out, but, on the contrary, was sold and money realized therefrom. If it had been laid out in streets and alleys no money would have been realized therefrom by the association; therefore, the parties stand upon terms of equality in this respect. In every case under the grant, when money was realized by the sale of lots and plots, the plaintiff shared therein on equal terms. When that was defeated and the sale otherwise made, the money realized therefrom belonged to each of the parties equitably in proportion as it would have been had it been produced in the manner contemplated by the grant. In the view we have taken of the statute and the construction of the grant thereunder, the doctrine announced in Thacher v. H. C. Association (126 N. Y. 507) has no application. Therein was attempted -to be enforced an obligation taken for the loan of money;' — 266 — there ,was no question raised as to the construction of the grant under which the land was held. It was assumed that the real estate belonged to the association subject to no condition whatever. Nor is it necessary to determine any question as to a vendor’s lien, as such lien is not essential to the right of the plaintiff to share in the fund. ' It follows from these views that judgment should be ordered providing that the plaintiff be awarded his proportional interest in one-half of the fund, with costs. Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Ingraham, J.,-dissented.