Summary
In Van Rensselaer v. Dennison, (8 Barb. 23), the General Term of the Supreme Court held that the tenant was not liable, under a covenant to pay taxes, ordinary and extraordinary, which might be assessed upon the premises granted in a perpetual lease, or upon the lessor, "for and in respect of the said premises," for the amount of a tax on the rents reserved in the lease.
Summary of this case from Woodruff v. Oswego Starch FactoryOpinion
September Term, 1866
A.J. Colvin and A. Bingham, for the appellant.
S. Hand, for the respondent.
The counsel for the appellant are correct in their position, that the conveyance in fee, executed by Stephen Van Rensselaer to the Van Iverens, in 1789, operated as an assignment, and not as a lease, and left neither any reversion nor possibility of reverter in the grantor. That point has been repeatedly adjudged by this court, in cases arising upon indentures similar, in all material respects, to the conveyance referred to. (2 Seld., 467; 19 N.Y., 68; 26 id., 558.) The cases which thus hold, proceed upon the ground that, since the act of 1787, concerning tenures (whatever was the law before its passage), it has not been possible to create a feudal tenure in this State; and, consequently, none of the peculiar incidents of that tenure attach to an estate granted by one citizen to another since that act took effect. Thus, for example, the notion no longer prevails that an ultimate estate remains in the grantor of a fee simple; or that he has a possible reversion, by escheat or otherwise; or that the estate granted by him is subject to certain inseparable conditions, implied by law, in his favor, such as that the grantee shall not alien, or shall render service or rent, and, in case of default, shall forfeit the estate. These rules, and many others that might be referred to, which were of feudal extraction, or resulted from the obligations arising out of the feudal relation, are now abrogated.
But, in all the decisions of this court, bearing upon the subject, careful attention has been given to the important distinction between conditions, implied by the law of feudal tenures, and those which the parties to a grant expressly mention and create in the conveyance, for the purpose of avoiding or defeating the estate. Any condition of the latter kind is valid, if consistent with the general rules of law; and if the condition expressed in a grant be valid, a right of entry for its breach, reserved to the grantor and his heirs or assigns, by the express terms of the grant, is also valid. This is wholly independent of tenure.
Prior to the adoption of the Constitution of 1846, there was no rule of law in this State prohibiting the reservation of a perpetual yearly rent, in a grant of land in fee, as a condition of the estate. Accordingly, it has been adjudged, in some of the very cases relied upon by the appellant's counsel, that such a rent, thus reserved, together with a right of distress and reëntry in case of non-payment, although not a rent-service, for want of a reversion in the grantor, is a rent-charge in fee, and equivalent to such rent-charge granted by the owner of the lands in fee. ( 19 N.Y., 76, 100; 26 id., 564.)
The cases already cited also held that such rent, although not an estate in the land, is a hereditament, devisable and assignable like other incorporeal hereditaments; that the covenants, entered into by the grantees for the payment of rent, run with the land and bind the heirs and assigns of the covenantor; that the terms of the devise to the plaintiff in this suit are sufficient to vest in him the right to the rents in question; and, according to the case of Van Rensselaer v Slingerland ( 26 N.Y., 580), the plaintiff, as the assignee of the rent and right of entry, may maintain ejectment.
These several positions were recently reaffirmed by this court, in the case of Main v. Jones, decided at the present term, and not reported. As it was strenuously contended at the bar, that this case presents questions that have not been determined by this court, I have thus referred to former adjudications to show precisely what they decide. It is seen that they dispose of every question in the case, of any importance, except those growing out of certain transactions which did not appear in the former cases, to wit, the plaintiff's mortgage to Butler, and his executory contracts of sale to Church.
The mortgage executed to Butler, in 1843, covered the rent-charge and the right of entry created by the conditions and covenants expressed in the indenture between Van Rensselaer and the Van Iverens. Those rights being incorporeal hereditaments, and not mere choses in action or personal property, the mortgage is to be treated as a mortgage of real estate, and not of chattels. That the parties so treated it is apparent from its form, and from the fact that the wife of the mortgagor joined in it, and acknowledged its execution in the mode requisite to pass her estate. It follows, therefore, by the operation of a familiar rule, applicable to all mortgages of real estate, that the mortgage from Van Rensselaer to Butler was only a security; the mortgagee had but a chattel mortgage prior to foreclosure and sale, and the mortgagor continued to be the real owner, unless there is some special provision in the mortgage having a different and controlling effect.
The defendant's counsel argues, from the terms of the mortgage, that it was intended to vest in the mortgagee the immediate right to receive the rents accruing upon the indentures covered by the mortgage, and hence, the mortgagor has no right to maintain this action. This argument is based upon the fact that the mortgage transfers not only the rents, but also "all powers and remedies whatsoever for the recovery thereof," and "all deeds, evidences or writings touching or in any wise concerning the said premises." The remedies and writings referred to were mere incidents to the rents, which were the principal things conveyed, and the parties intended not to separate them, but that they should pass together under the mortgage, and that the mortgagee should have the same interest in the incidents as in the principal, to wit, a mere security for the payment of his debt, the mortgagor continuing to be the real owner. The subsequent conduct of the parties accords with this view. The referee found that the mortgagee had never taken possession of the mortgaged property, or any part of it, but had suffered the mortgagor, and those holding under him, to possess the same, and to deal with the profits thereof as his and their own, without prejudice to the lien of the mortgage. The plaintiff's right to maintain this action, therefore, is unimpaired by the mortgage to Butler.
The contracts of sale to Church were executory. The sale was not to be complete, so as to pass the title to the rents, except as they were paid for by the vendee, and then such rents only were to be transferred as the parties should select. There is no evidence that the rents reserved by the deed to the Van Iverens were paid for, or that they were selected by the parties and transferred.
But it is insisted by the defendant's counsel, that, by the terms of the contracts, the plaintiff ceased to have the right to collect or receive the demands for which suit was brought, and, therefore, he was not the real party in interest at the time of the commencement of this action. That position is untenable. Church had a mere authority to collect rents in the name of the plaintiff, or of any other person who might succeed to the right and title of the plaintiff, by his death, by operation of law, or by transfer, subject to the rights of Church. Such authority was not in exclusion of the right of the plaintiff, the legal owner of the rents, to collect and receive them, nor could it possibly divest him of his right to recover possession of the lands on breach of the conditions in the deed.
There is no merit in the other questions discussed by the appellant's counsel. The judgment should be affirmed.
All the judges concurring, except PORTER, J., who took no part in the case.
Judgment affirmed.