Postley v. Kafka

Martin, J.: This is a submission of a controversy upon an agreed statement of facts, the question being whether defendant was justified in rejecting title tendered under a contract by which plaintiffs agreed to sell and defendant to purchase a parcel of realty known as No. 3318 Third avenue, borough of The Bronx, New York city. The contract does not indicate that there are any restrictions on the use of the property other than those imposed by the Building Zone Resolution. As a result defendant’s position is that provisions contained in certain deeds justified him in rejecting title. In 1848 Gouverneur Morris was the owner of a tract of land in Morrisania in the town of West Farms, county of Westchester, State of New York, which he divided into lots and sold to various purchasers, inserting in each deed the following condition: “ But this indenture is upon the express conditions that no ardent or intoxicating drinks shall be manufactured, or bought or sold on the premises hereby conveyed to be used as a beverage, and further, that the grantee or party hereto of the second part, his hems or assigns, shall within three years from the date hereof, erect or cause to be erected on the said premises a neat dwelling house of the value of at least. Three hundred dollars, and that no dwelling house shall be erected on the said premises of less value than Three hundred dollars. And in case the said conditions are not faithfully performed and kept the estate in the said premises. [597] of the said grantee, or party of the second part, his heirs or assigns, or any of them shall cease and determine, and the said premises shall immediately revert to the grantor or party of the first part, and his heirs or assigns.” The land affected by the contract is part of that deeded by Gouverneur Morris on September 8, 1848, to William Russell Collins of the city of New York. The next conveyance thereof was made by deed dated October 7, 1848, from William Russell Collins to William Orpin of the city of New York. It repeated the condition, quoted above, which Gouverneur Morris had inserted in his deed to Collins. On March 13, 1849, Gouverneur Morris and a number of other persons entered into an agreement or release canceling and discharging said condition in the deeds he had made and in those made by his grantees. In this agreement or release both William Russell Collins and William Orpin joined. It was duly recorded July 25, 1849. It is dated March 13, 1849. The next conveyance affecting plaintiff’s lot was that of November 27, 1851, by deed from William Orpin to Christian Gumpert of the county of Westchester. In this deed from William Orpin to Christian Gumpert the provisions referred to were not inserted, nor do they ever again appear in any subsequent deed affecting the premises. The defendant asserts that the effect of such condition on the marketability of the property was decided by this court in Weinberg v. Sanders (204 App. Div. 409), and that the decision there made is conclusive in his favor. In relation to plaintiffs' lot the possibility of a right to re-enter for breach of condition was forever extinguished by the instrument of 1849. The only persons who could have exercised such a right of re-entry were parties to the agreement and they solemnly and in most effective language agreed that the provisions in the deed should no longer have effect or be enforced and that the land should be freed and discharged therefrom. As to plaintiffs’ lot the record now before this court shows that all persons who had held or were holding directly from Gouverneur Morris or by subsequent grant were parties to the agreement. Every one who might otherwise have a claim in reference to the possibility of reversion in that lot was forever prevented by this most complete agreement from becoming entitled to re-enter for breach of condition, for the condition was extinguished by consent. Only those indicated could have become entitled to such right to re-enter. Up to the time of the execution of the release no one had come into the title, so far as this particular parcel was concerned, but Gouverneur [598] Morris, Collins and Orpin. The heirs of none of them succeed to the possibility of a reversion following a breach of condition because the condition was extinguished by all persons who could ■have- any relation to it, all such being still alive and joining in its extinguishment. The decisive point of fact here is just the contrary of what was the basis in fact for the condition in Weinberg v. Sanders (supra). There one Davids had come into the chain of title and, though he had conveyed the property with a repetition of the condition and with an expressed provision for reversion to himself in case of breach, he did not join in the ágreement discharging the condition. It was noted by the writer of the opinion in the case mentioned that “ the defect complained of is a condition and not a restrictive covenant ”, and that the case deals “ not with an equitable but with a legal right,” the right of re-entry upon condition broken being referred to expressly. As we understand' the submission in this case the question is whether plaintiffs’ title is subject to a condition, it apparently being contended for defendant that any one claiming under this title would be subject to a right of re-entry for past or future breach of the condition. He points to the case cited and. doubtless fears that its effect, when coupled with an alleged breach of condition in the past, would be to make the title subject to a possible right of re-entry. But,as stated the two cases differ at the turning point of fact and defendant’s fear is ungrounded. It is obvious that persons who may be or who may have been in the titles of other nearby or adjoining parcels conveyed by Gouverneur Morris, by grants containing in like manner the provisions quoted, have, because of ownership of other land, no possible standing to assert a right to re-enter, for condition broken, in relation to plaintiffs’ lot. No one could have that standing but a person who himself made a grant of plaintiffs’ land on a condition, or someone to whom has come the rights of such a grantor. In this instance, such a right never came and never can come to the heirs of Morris, Collins or Orpin because, while they were still alive, they extinguished any such possibility by executing the release for that very purpose. It is suggested, but not by the record, that holders of adjoining land might have the right to enforce the provisions quoted as a covenant. This suggestion is neither supported by the record "nor referred to in the briefs. It depends on assumptions of fact which the submission does not disclose to the court. The release of 1849 refers to a section of what is now the borough of The Bronx. The lands to which it relates are extensive, especially [599] when considered as part of a great city. We may take judicial notice that they are in a locality where there is and for a generation has been much activity, including business uses of varied character. Though perhaps these lands embrace many lots which have been dormant and unused, every one having the slightest knowledge of conditions in New York city, in the locality of these lands formerly of Gouverneur Morris, must know it is inconceivable that there has been, in the vicinity referred to, such abstention from the manufacture, sale and use of “ ardent spirits ” and other intoxicating liquors as to leave the provisions referred to enforcible as restrictive covenants. Apart from the fact that this is not a point arising from what is stated by the parties or the briefs based thereon, and not technically before us, we should dismiss it as one wholly without merit. Our metropolis is rebuilding in nearly every section; and this development should not be retarded by fear bred of obsolete and utterly useless provisions of a restrictive character, resurrected from practical oblivion by the system and methods currently used by some title companies. Our courts will not be equally as perverse, or as blind to current conditions, or as unsympathetic with and as obstructive to the natural development of our city. Surely it is the law that vague uncertainties of an impractical and wholly useless character are not to be successfully invoked by those relying on provisions of a restrictive nature in deeds of realty. It is settled that doubts are resolved against those seeking to enforce restrictions. By the agreement or release of 1849 the parties thereto discharged the lands from the effect of the provisions quoted and, furthermore, covenanted against the enforcement of the same. Its execution was evidently under consideration very shortly after Gouverneur Morris made the subdivision and while it was still feasible to have it substantially complete; for it recites that the deeds made by him bear date September 8, 1848. It is executed by a great number of people and further recites that the parties of the second part are “ the respective owners of the said lots and parcels of land by virtue of the said conveyances from said Gouverneur Morris and divers mesne conveyances.” Considering that the release very quickly followed the grant, that seventy-five years have elapsed since it was executed, that the general character of this section of the city and especially of Third avenue in the vicinity of plaintiffs’ lot negative the suggestion that the provisions quoted have been regarded as retaining vitality despite the release, it seems to me that this is not a case for the application of the principles invoked by the court in Post v. Weil [600] (115 N. Y. 361); Silberman v. Uhrlaub (116 App. Div. 869) and Korn v. Campbell (192 N. Y. 490). It would be contrary to common sense to invoke those principles in a wholly useless attempt to revivify provisions, possibly to be regarded as having the effect of restrictive covenants, where the character of the neighborhood shows that all concerned have accepted as adequate the discharge thereof and have acted accordingly during a period extending over a generation. An additional reason for refusing to sustain the objection to title based upon the effect, as restrictive ■ covenants, of the provisions referred to above is to be found in the fact that they no longer imply any burden on the land. The time for building dwellings for less than $300 in this section of the city has unquestionably passed; and the prohibition against the manufacture and sale of intoxicating liquors is now merely expressive of the fundamental law of the entire country. It is possible that in this respect the fundamental law might be changed, that a covenant against the sale of intoxicating liquor might at some future time become a real burden and, for such reason, that it should be regarded as a present burden. But the actual prospect is nevertheless a feature to be considered; and its consideration leads to a realization of the futility of the suggestion that, despite what has been pointed out, an owner of a lot not affected directly by the release of 1849 can find, in the provisions referred to, covenants the performance of which he may enforce. On the stipulation contained in the submission there should be judgment for plaintiffs. ' Clarke, P. J., Dowling and McAvoy, JJ., concur; Finch, J., dissents.