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Sec. 265. Facts stated. This was an action of ejectment to recover the possession of certain lands in the TwentyThird ward of the city of New York. In 1862 they were owned by Mary McDonough Davey, who, on the 19th day of September in that year, conveyed them, for a nominal consideration, to Rev. John Hughes, by deed containing full covenants and warranty, with this habendum clause and condition, viz. "To have and to hold * unto the said party of the second part, his heirs and assigns, upon the following conditions, to wit: That said party of the second part shall consecrate or cause to be consecrated, the said property for the purpose of erecting a church building, and shall, within a reasonable time, erect, or cause to be erected, such building." Reservation was also made by the party of the first part of the right to appropriate, at her option a sufficient place of interment for her deceased husband, her family and herself, in the ground under the church building, or outside thereof. Subsequently Mrs. Davey, the grantor in the said deed, died, leaving a will, made January 6, 1862, wherein she disposed of her estate, real and personal, and gave to the residuary legatee, therein named, all property and estate, real and personal not effectually and lawfully disposed of therein. The Reverend John Hughes, grantee in Mrs. Davey's deed, died, and the defendant Archbishop Corrigan has succeeded to his interest. The plaintiff and the defendant Pooler are the only heirs at law of Mrs. Davey, and the plaintiff's claim to recover the possession of the premises described in the deed to Hughes is based upon the breach of the express condition set forth in the deed. The trial judge found, as facts, that up to the time of the commencement of this action the property had not been consecrated for the purpose of erecting a church building, that no church building had been erected thereupon, and that, at the date of the deed, a reasonable time for such erection did not exceed 10 years. This action was commenced in 1891, or about 29 years after the execution of the deed. The plaintiff was awarded judgment at the trial term, and, that judgment having been affirmed at the general term, the defendant Corrigan has appealed from its affirmance to this court.

GRAY, J.

Sec. 266. Statement of the case. The question which this appeal presents is both interesting and important and its answer turns upon the construction to be given to the provisions of our statute of wills. I think, too, that there have been certain decisions made by the courts of this state upon the general question, the effect of which it would be very difficult to overlook, however much inclined we might feel to differ in our reasoning. The question is, can the plaintiff, claiming as heir at law of Mrs. Davey, maintain this action to recover the possession of the premises in question for the breach of the express condition in her grant; or has such a right passed, under Mrs. Davey's will, to her residuary legatee? The learned counsel for the appellant has argued, with ability and with force, against the plaintiff's right; and the contention which he makes is that an interest remained in the grantor, which, being descendible to her heirs, was made devisable by the Revised Statutes, and therefore passed under her will. If it is true that the plaintiff must rest her right to enter for breach of the condition upon the descent of some estate or interest left in the grantor, then, I think, the appellant's contention is right, and this action should fail; but if, on the other hand, and as argued for the respondents, the plaintiff has the right to enter, not through the operation of the law of descent, but merely representatively, as heir at law, and the rule at common law has not been changed by our statutes, then, I think, we will find ourselves obliged to conclude that the devisee of Mrs. Davey was incapable of possessing a right of entry, and that it belonged solely to her privies in blood.

Sec. 267. Right to reenter for breach of condition subsequent-Not a devisable estate-Only a grantor's heirs can exercise after his death. At common law, the benefit of such a condition in a grant of real estate could be reserved only to the grantor and his heirs. It was not considered to be a devisable interest in the grantor, and the right of reentry for a breach could not be assigned to a stranger. It was a nonassignable right, and no other person than the grantor or his heir could take advantage of a condition which

See

required a re-entry in order to revest the former estate. 4 Kent, Com., pp. 122, 127; Jackson v. Topping,1 Wend. 388, 395 (19 Am. Dec. 515); Goodright v. Forrester, 8 East, at page 566. The reason quaintly given in Lord Coke's Institutes was that, "under color thereof, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed, which the common law forbiddeth, as men to grant before they be in possession." Co. Litt., § 317. In Greenleaf's Cruise on Real Property (volume 1, tit. 13, c. 1, § 15), the reason of the rule is thus given: "That it is a maxim of law that nothing which lies in action, entry or re-entry can be granted over, in order to discourage maintenance." Whatever criticisms may be made upon the reasons for the rule at common law, it must be recognized as a continuing rule of property, if not changed or done away with by the Revised Statutes. The effect of section 17 of article 1 of the state constitution was to retain so much of the common law of England as formed the law of the colony of New York on the 19th day of April, 1775, where not repugnant to our form of government, or inapplicable to our institutions, and subject to such alterations as the legislature should from time to time make. The appellant feeling bound to concede that the right of re-entry was not devisable at common law, claim that the Revised Statutes have altered the law by the provision that "every estate and interest in real property descendible to heirs may be devised." 2 Rev. St. p. 57, § 2. Undoubtedly, this language of the statute of wills is as comprehensive as it can be to cover real interests; but we are remitted, nevertheless, to the inquiry whether, here, what the grantor had, with reference to the estate she had granted, amounted in law to an estate or interest in the real property, and therein lies the difficulty. At common law it was only a possibility of reverter, and not a reversion. 4 Kent, Comm. 370; Martin v. Strachan, 5 Term R. 107. pening of the breach of the express condition in the deed and a revesting of the estate through re-entry, the whole title was in the grantee. Have the Revised Statutes changed the grantor's status? In chapter 1, part 2, of the Revised Statutes, upon the nature, qualities, and alienation of estates in real property, article 1 of title 2 creates various estates in lands,

Until the hap

and divides them into those in possession and in expectancy. The latter class is again divided-First, in future estates limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination of a precedent estate; and, second, into reversions, which latter are defined to exist where the residue of an estate is left in the grantor, or his heirs, commencing in possession on the termination of a particular estate granted. By section 35

of the same article, it is also provided that "expectant estates are descendible, devisable, and alienable, in the same manner as estates in possession." If, therefore, there was any estate left in Mrs. Davey, upon her grant to Hughes, it was not one known to our statute on real property; and all expectant estates, within which class it would have to fall, are abolished by the article, except such as are therein defined, and which must be either estates limited to commence, in possession at a future day, or reversions. The real interest contended for here would not satisfy the requirement of either class. The mere possibility of reverter, which was all there was in this case, could not be included within the "reversions" spoken of by the statute, within its letter or spirit. The statute of wills, through the use of such precise words as "every estate and interest in real property descendible to heirs," obviously must have reference to such as are recognized by the Revised Statutes to be estates of inheritance. We would be without warrant in asserting the existence of any estate in Mrs. Davey in the premises granted to Hughes, whether at common law or under the Revised Statutes. She had an election to enter for condition broken, and she could release her right to do so. Το those rights her heirs, after her decease, succeeded by force of representation, and not by descent. There was no estate upon which the statute of descent could operate; but, as heirs, there devolved upon them the bundle or aggregate of the rights which resided in and survived the death of the grantor, their ancestor. Her legal personality was continued in

them.

Sec. 268. Same-Authorities collated and reviewed. An early and leading case in this state is that of Nicoll v. Railroad Co., 12 N. Y. 121. That was in ejectment, where

the plaintiff sought to recover the possession of certain lands for breach of the condition upon which they had been granted by one Dederer to the railroad company. The plaintiff, through sundry mesne conveyances, claimed to have acquired the rights of Dederer in the premises. I think that the case fairly presented the question which is involved in the present case, for the right of entry, if assignable by a grantor upon condition at all, could as effectually be assigned through deed as through a testamentary devise. It was held that the grantee in the original deed of the lands took a fee upon condition subsequent, and the discussion turned upon whether the grantor in that deed, when he subsequently conveyed to the plaintiff's predecessor in interest, had any assignable interest in the premises. That question was answered in the negative, there having been no forfeiture. It was said that "a mere failure to perform a condition subsequent does not divest the estate. The grantor or his heirs may not choose to take advantage of the breach, and, until they do so, by entry, or by what is now made by statute its equivalent, there is no forfeiture of the estate. This was the common law, and it has not been altered by statute, so as to give a right of entry to an assignee, in any instance, not coupled with a reversionary interest, as in the case of estates for years and for life, except in cases of leases, or rather of grants in fee, reserving rent." After speaking of the change made in England by 32 Hen. VIII, c. 34, and in our Revised Statutes, which permitted the assignment of a right of entry in case of grants, or leases in fee reserving rents, and of leases for lives, or for years, the opinion continues: "There was a reason for the statutory change in the particular cases mentioned, for in them the grantor had an interest independent of the possibility of But where a fee simple, without a reservation of rents, is granted upon a condition subsequent, as in this case, there is no estate remaining in the grantor. There is simply a possibility of reverter, but that is no estate. There is not even a possibility coupled with an interest, but a bare possibility alone." The question is then considered whether the grantor in the deed to the railroad company might have had an expectant estate under the Revised Statutes, and it was held that the statute has furnished a definition of the

reverter.

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