FREER ET AL.
GLEN SPRINGS SANITARIUM CO. ET AL.
Appeal from Special Term, Schuyler County.
Ejectment by George G. Freer and another against the Glen Springs Sanitarium Company and others. Judgment for defendants, and plaintiffs appeal. Affirmed.
[115 N.Y.S. 735] Irving
W. Cole, for appellants.
C. W. Woodward and O. P. Hurd, for respondents.
Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.
JOHN M. KELLOGG, J.
The plaintiffs, two of the three heirs at law of George W. Freer, bring this action of ejectment to recover about 1 1/10 acres of land, being a part of a parcel containing about 20 acres which was conveyed by said Freer and wife to the village of Watkins April 14, 1866, 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 1 1/10 acres have been conveyed by the village to the Glen Springs Sanitarium Company, and 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, N. 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 the 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. [115 N.Y.S. 736] 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 deed, 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 the above-described reservation shall be used for burial or cemetery purposes only; but the party of the second part may, notwithstanding this restriction, appropriate and dedicate" a certain part for a soldiers' monument.
And in the habendum clause:
" To hold the said land 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 ...