Opinion
January Term, 1901.
Andrew G. Washbon and Stephen L. Mayham, for the appellants.
William H. Johnson and A.R. Gibbs, for the respondents.
The appellants first challenge certain findings of fact, especially the finding that the erection of the building was prevented by the false and unwarranted claim of title made by the plaintiffs while the building was in process of construction. This finding has, however, abundant support in the evidence. The moneys to be raised for the construction of the building were to be raised upon voluntary subscriptions. Little evidence is required to justify the conclusion that the ability to collect such subscriptions would be largely hazarded by a question raised as to the title by the grantor upon whatever facts he might base his claim. At least it is with little grace that he can claim that the doubt which he himself has thrown upon the title is not a substantial doubt, especially when from the time he first made his claim he has persisted therein and now persists upon this trial, that this deed was fraudulently delivered and that the title to the property did not by this delivery vest in the grantee named. We have examined the evidence found in the record and find no reason to disturb any of the findings of fact made by the learned referee.
The deed in question, after specifying the conditions, provided: "A substantial compliance with the foregoing requirements shall be deemed essential to the validity and permanence of the title hereby conveyed." This provision of itself would seem to be sufficient to characterize the condition. If deemed insufficient, however, the necessary occupation by the defendant of the premises with a large expenditure thereon necessary for the fulfillment of the conditions would stamp those conditions as conditions subsequent, a failure to comply with which, unless willfully made, will not defeat the defendants' title. In Towle v. Remsen ( 70 N.Y. 311), Judge MILLER, in writing for the court, says: "No precise technical words are required to constitute a condition precedent or subsequent, and the construction, if such a condition must always be founded upon the intention of the parties. (Citing authorities.) Even when the act does not necessarily precede the vesting of the estate, but may accompany or follow it, if the act may as well be done afterwards as before the vesting of the estate, the condition is subsequent. (Citing authority.) The intent of the parties in the grant is quite apparent. Large expenses were to be incurred by the grantees for the building and improvement of the streets therein named. Large spaces between these streets were to be filled up at a heavy outlay, and rents were to be paid annually. The improvements mentioned were also essential in order that the benefits to be derived from the grant might be realized. It is not reasonable to suppose that all these things were to be done without a particle of title or right being vested in the grantees. When they received the grant they had a right to assume, and it was clearly intended, that they should be seized of an estate." In Rose v. Hawley ( 141 N.Y. 378), in speaking of a condition subsequent, it is said: "It is not enough to show in this way that the letter of the condition is violated, but it must appear that its true spirit and purpose have been willfully disregarded by the grantee."
This being then a condition subsequent, has there been a substantial violation of the condition? The deed itself calls only for a "substantial compliance" with its conditions. This contract was not made until the 8th day of November, 1895. The contract calls for the completion of the building by the 1st of April, 1896. This contract was made with the concurrence of the plaintiff, and its execution was commenced not only with his concurrence, but with his assistance. The referee has found that the building would have been completed by the first day of January were it not for his unlawful interference. Under the admitted facts of the case, however, even though it had been completed by the first day of April, we think that the condition would have been fairly satisfied, and the failure to complete the building before that time would have given no right to the grantor to re-enter.
The question remains as to the legal effect upon the conveyance of the unwarranted claim of the grantor as to the fraudulent delivery of the deed in causing the suspension of the work upon the building. That the suspension of the work was thus caused has been found by the referee, as we have held, upon abundant evidence. To allow the grantor to re-enter for a breach of a condition subsequent, the performance of which is made impossible by his own wrongful act, would be unconscionable law, and authority would hardly seem necessary to refute such a proposition. This plaintiff claims that he had been at all times anxious for the erection of this building, and yet he at all times claimed that the building would be his property when erected. At no time has he offered to waive his claim of the improper delivery of the deed, and to assure the grantees an unquestioned title if within a reasonable time they would construct the building. In Rice on Real Property (at p. 778) the rule is laid down: "Conditions which are impossible at the time of making them, or which afterwards become impossible by the act of God, or by the act of the grantor himself, are void, and an estate already vested thus becomes absolute. The reason is that the moment that a condition becomes impossible, it ceases to be a condition in the sense intended by the grant, and when this is not the fault of the grantee, he is not to be prejudiced thereby. Accordingly the estate being vested, he holds it discharged of the condition." We think the learned referee was clearly right then in his conclusion that the estate of the grantee had not been forfeited by the failure to erect the building within the time prescribed in the deed.
But this judgment has gone further than this. It has declared the absolute fee of these premises in this grantee relieved from the condition contained in the deed in so far as it required the erection of the building thereon. To this we cannot quite agree. The purpose of the deed is therein expressed. The performance of the condition subsequent has been rendered impossible by the grantor only as to the time of its performance. In Davis v. Gray (16 Wall. 204) the head note reads: "Where the State of Texas had made to a railroad company a large grant of lands defeasible if certain things were not done within a certain time by the company, the fact that the so-called secession of the State, and her plunging into the war, and prosecuting it, rendered it impossible for the company to fulfil the conditions, in law abrogated them. However, as the court thought that the enforcement of the legal rule in the particular case would work injustice, it declined to apply such legal rule, and applying an equitable one held that the conditions should still be complied with; but complied with in such reasonable time as would put the parties in the same situation, as near as might be, as if no breach of condition had occurred." Justice SWAYNE, in writing for the court says: "The rule at law is that if a condition subsequent be possible at the time of making it, and becomes afterwards impossible to be complied with by the act of God or the law or the grantor, the estate having once vested, is not thereby divested, but becomes absolute. The analogy of that rule applied here would blot out these conditions. But this would be harsh and work injustice. Equity will, therefore, not apply the principle to that extent. It will regard the conditions as if no particular time for performance were specified. In such cases the rule is that the performance must be within a reasonable time." It is neither an equitable nor a necessary construction that will authorize this grantee to hold this property for purposes other than those specified in the grant. After the title to this property has thus been declared in the grantee, by judgment from which no appeal is taken or can be taken, the obstacle to the construction of the building has ceased, and the condition specified in the deed can be performed within a reasonable time thereafter.
We have examined the other objections raised by the appellant and find no ground of complaint therein.
The judgment should, therefore, be modified so as to dismiss the plaintiff's complaint, with costs, and that part of the judgment which declares the title in the grantee relieved from the condition contained in the deed, in so far as it required the erection of a building thereon, should be stricken out, and, as thus modified, the judgment should be affirmed.
All concurred, except MERWIN, J., not voting.
Judgment modified so as to dismiss the complaint, with costs, and that part of the judgment which declares the title in the grantee relieved from the condition contained in the deed, in so far as it requires the erection of a building thereon, stricken out, and, as thus modified, affirmed. No costs to either party.