Upon these two provisions of the deed the learned referee held that the whole estate passed to Mrs. Hoyt by the granting clause or the premises of the deed, and that the terms of the habendum clause being repugnant to the terms of the grant the premises must prevail, and that the estate thereby granted cannot be diminished nor cut down nor varied by anything contained in the habendum. It is a rule of construction applicable to the interpretation of deeds that whenever there is a grant contained in the premises of a deed, operative by its terms between all the parties to the deed, that the estate granted in the premises is not to be diminished by the habendum, and in disposing of this case the learned referee has applied that rule which was enforced in Mott v. Richtmyer ( 57 N.Y. 49). That case was considered by the referee as controlling here. There can be no doubt of the existence of the rule of construction, but it is only a rule of construction and must yield to the manifest intent of a grantor if it is made plain that such intent makes that rule inapplicable.
The fact that the Traffic Agreement bears the date of May 27, 1890, whereas the other two instruments bear the date of July 17, 1890, does not destroy the rule announced by the New York courts. Although Mott v. Richtmeyer, 1874, 57 N.Y. 49, 64, held that the instruments could not be construed together unless they were executed on the same day, Baird v. Erie R. Co., 1914, 210 N.Y. 225, 104 N.E. 614, clearly limited that case to its facts. New York now expressly recognizes that the instruments need not be executed on the same day in order to be construed together as part of the same transaction.
And in a New York case where the grantor had, by a quitclaim deed, conveyed lands to the grantee, "his heirs and assigns forever, to have and to hold, * * * in trust," to secure the grantor's support, the court declared that the property was "conveyed in fee simple upon condition," and that the grantee, "having complied with the terms of the agreement," was entitled to the land, upon the grantor's death, freed from any charge. Mott v. Richtmyer, 57 N.Y. 49. In Glocke v. Glocke, 113 Wis. 303, 311, 312, 89 N.W. 118, 121 (57 L.R.A. 458), the Supreme Court of Wisconsin, treating of circumstances where the intent of the grantor was to secure personal performance by the grantee of the obligations stipulated — there being no adequate remedy for such a breach of the agreement by the grantee as would prevent the grantor from realizing the purpose of the grant other than a restoration, so far as practicable of the parties to their former position — said that a court of equity will read out of the papers evidencing the agreement a condition subsequent upon which the property was conveyed, enforceable by the grantor the same as any other such condition in the conveyance of property.
undoubtedly the rule that several instruments of the same date, between the same parties, and relating to the same subject may be construed as parts of one contract." ( Jackson v. Dunsbagh, 1 Johns Cas. 91; Stow v. Tifft, 15 Johns. 458; Jackson v. McKenny, 3 Wend. 233; Van Horne v. Crain, 1 Paige, 455; Hills v. Miller, 3 id. 254; Cornell v. Todd, 2 Denio, 130; Hull v. Adams, 1 Hill, 601; Howe's Exr. v. Woodruff, 21 Wend. 640; Rawson v. Lampman, 5 N.Y. 456. ) These cases were cited in Mott v. Richtmyer ( 57 N.Y. 49, 64), in which it was held that the rule has no application to instruments bearing different dates and executed at different times. The Mott case was properly decided upon its peculiar facts, but here the conditions are quite different.
The general rule is that several instruments of the same date, between the same parties, and relating to the same subject may be construed as parts of one contract. ( Hills v. Miller, 3 Paige, 254; Mott v. Richtmyer, 57 N.Y. 49, 64, and cases cited.) After the deeds between the parties to that transaction were executed and delivered the plaintiff and her sister had no interest in any land bordering upon that conveyed to them, and it did not adjoin any street or highway. Nor did it in any way connect with or adjoin Hickory Grove Factory lane, but was situated more than ninety feet therefrom.
The deed from Winbigler to Rhinehart did not create a valid limitation upon the use of the property, as such a limitation was inconsistent with the estate granted, and therefore void and inoperative. (4 Kent's Commentaries, 468; 2 Blackstone's Commentaries, 298; Craig v. Wells , 11 N.Y. 315, 322; Eldridge v. SeeYup Co ., 17 Cal. 45; Ives v. Van Auken, 34 Barb. 566; Hill v. Priestly , 52 N.Y. 635; Mott v. Richtmyer , 57 N.Y. 49.) Edwin Baxter, and Westerman & Broughton, for Appellant.
Plaintiffs submitted the 2002 deed in support of their motion for summary judgment, among other things. As they contend, the rules of construction applicable to deeds provide that where there is a conflict between the provisions set forth in the premises clause and those in the habendum clause relative to the extent of the conveyance, the premises clause will control, absent a clear indication of a contrary intent elsewhere in the deed ( see Mott v. Richtmyer, 57 N.Y. 49, 63 [1874]; Bannin v. Peck, 266 App.Div. 209, 212–213, 41 N.Y.S.2d 668 [1943], affd. 291 N.Y. 717, 52 N.E.2d 599 [1943]; Bates v. Virolet, 33 App.Div. 436, 440, 53 N.Y.S. 893 [1898]; 4–37 Warren's Weed, New York Real Property § 37.53 [2014] ). Here, the premises clause provides that the remainder interest in the property is conveyed to plaintiffs, and nothing in the deed other than the habendum clause suggests that decedent had a contrary intent.
Generally, the rule is that separate contracts relating to the same subject matter and executed simultaneously by the same parties may be construed as one agreement (Rudman v. Cowles Communications, 30 N.Y.2d 1, 13; Palmer v. Palmer, 150 N.Y. 139, 146; Mott v. Richtmyer, 57 N.Y. 49, 64-65; Dynamics Corp. of Amer. v. International Harvester Co., 429 F. Supp. 341, 346). The rule is applied even though in one of the contracts it is stated that there are not other contracts between the parties (3 Corbin, Contracts, § 578, p 407), or such contract does not refer in terms to the other (4 Williston, Contracts [3d ed, Jaeger], § 628, p 904).
( Harriot v. Harriot, 25 App. Div. 245, 249; Clapp v. Byrnes, 3 App. Div. 284, 286, affd. 155 N.Y. 535.) In Mott v. Richtmyer ( 57 N.Y. 49, 63) the court held: "That portion of the deed called the premises gives Abraham, his heirs and assigns, forever, an absolute title in fee to the lands conveyed. There is an apparent attempt to qualify this title in the habendum clause, but that clause cannot have the effect claimed by plaintiffs' counsel. It is said in 4 Kent's Commentaries, 468, that the habendum clause `cannot perform the office of divesting the estate already vested by the deed, for it is void if it be repugnant to the estate granted.
The direction to divide the entire income of the residuary estate among the five named children, there being no disposition of the corpus, is to be construed as a devise or bequest of the property itself. ( Hatch v. Bassett, 52 N.Y. 359, 362; Tabernacle Church v. Fifth Ave. Church, 60 App. Div. 327, 335; Vanderzee v. Slingerland, 103 N.Y. 47, 53; Locke v. F.L. T. Co., 140 id. 135, 146; Mott v. Richtmyer, 57 id. 49; Paterson v. Ellis, 11 Wend. 259, 298.) Lazansky, P.J., Carswell, Adel, Taylor and Close, JJ., concur.