Williams, J.:
The action was brought to establish and to enforce an alleged vendee’s lien upon real property for purchase money. , Hay 31, 1893, the defendant hospital and the defendant Samuel entered into a written contract whereby the hospital agreed to sell and convey to Samuel property on Fifth avenue between Fifty-fourth and Fifty-fifth streets, New York city, for the sum of $2,400,000, which Samuel agreed to pay as follows: On the execution of the contract, $50,000; on the 29th day of July, 1893, $50,000; on the 2d day of January, 1895, $620,000 in cash, and the balance of $1,680,000 by bond and mortgage on the property. Samuel made the two cash payments of $50,000 each at the times agreed upon. On the 19th day of October, 1894, the parties agreed, upon Samuel’s paying an additional $100,000 of the purchase price on the 2d day of January, 1895, to an extension of time for the payment of the balance of [340]*340cash, and the giving of the bond and mortgage and the taking of the title until July 1, 1895. The defendant Samuel, on the 2d day of January, 1895, failed to pay the additional $100,000 provided for . by the extension agreement, and on the'26th day of January, 1895, the defendants canceled the original contract of May 31, 1893, and by writing, under seal, mutually released each other from all claims and demands, the defendant hospital retaining the $100,000 paid upon the contract.
By the original contract, the hospital agreed to give Samuel a deed of the premises in fee simple, free from all incumbrances, and the law implied that the title should be a good one.
The plaintiff claimed that tile cancellation of the contract and the mutual releases made January 26, 1895, were made under mistake of fact, in that both parties understood and believed during the whole transaction that the hospital had good title to the property and power to convey such title free'from incumbrances, whereas in fact the title to the property was during all this time affected or limited by a condition that the premises should forev.er be used for the purposes of a hospital and chapel, and that the defendant hospital could not, therefore, at any time comply with the terms of the contract so as to entitle itself to retain the $100,000 paid by Samuel. Under this condition of things, it was claimed that Samuel was entitled to a cancellation of the agreement for extension of time and the agreement canceling the original contract, and tlié mutual releases between the parties, and to recover hack the $100,000. paid by. him. The plaintiff, as the assignee of Samuel of one-half of his interest in the contract and purchase money paid, brought this action based upon such claim.
The trial court held that there was in fact no defect in the hospital’s title, and that if there was, all the facts were known to both the parties, and that if there was any mistake at all it was a mistake as to the legal effect of such facts, which would not be sufficient to entitle the plaintiff or his assignor to a cancellation of the agreements and releases executed by the parties, and that no right to recover back the purchase money paid existed.
There seems to - be no doubt but that the facts as they really existed were known to Samuel as well as to the hospital prior to the time the extension and cancellation agreements and releases
[341]*341were made. And this being so, there could be no mutual mistake of fact under which the parties acted, which would enable Samuel to avoid such agreements Or releases. A mistake as to the legal effect of such facts would not enable either to avoid the agreements or releases. The more satisfactory ground for sus- • taming the decision of the .trial court, however, is that the hospital’s title was all the time perfect and unaffected by the condition referred to, as will appear from a review of the facts. The city of Hew York was the owner of the property in question, and in 1848 gave the deed of it to the “ Anglo-American Free Church of St. George the Martyr,” which contained the condition in question in the following words : “ Provided always that these presents are upon this express condition, that the said parties of the second part, their successors and assigns, shall and do within three years from the date hereof erect upon the said ground so conveyed to them erect
Thereafter, and on March 16, 1852, another deed was given by the city to the Church of St. George the Martyr for the purpose of correcting a clerical error in the description of the property,-which contained the following reference to the condition in question : il But it is hereby expressly declared by us, the.said Mayor, Aider-men and Commonalty of the City of Hew York, and to be taken as a part of these presents, that nothing herein- contained shall extend the grant, powers and benefit given or allowed to the Rector, Churchwardens cmd Vestrymen of the Anglo-American Free Church of Saint George the Martyr, their successors or assigns, in and by the said deed of the tenth day of May, 1848, and its extension, and that all provisos, conditions, acts, performance and stipulations on their part embraced therein or in either shall still control and be effective and in force against them.”
Thereafter, and on October 15, 1852, the Church of St.
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Williams, J.:
The action was brought to establish and to enforce an alleged vendee’s lien upon real property for purchase money. , Hay 31, 1893, the defendant hospital and the defendant Samuel entered into a written contract whereby the hospital agreed to sell and convey to Samuel property on Fifth avenue between Fifty-fourth and Fifty-fifth streets, New York city, for the sum of $2,400,000, which Samuel agreed to pay as follows: On the execution of the contract, $50,000; on the 29th day of July, 1893, $50,000; on the 2d day of January, 1895, $620,000 in cash, and the balance of $1,680,000 by bond and mortgage on the property. Samuel made the two cash payments of $50,000 each at the times agreed upon. On the 19th day of October, 1894, the parties agreed, upon Samuel’s paying an additional $100,000 of the purchase price on the 2d day of January, 1895, to an extension of time for the payment of the balance of [340]*340cash, and the giving of the bond and mortgage and the taking of the title until July 1, 1895. The defendant Samuel, on the 2d day of January, 1895, failed to pay the additional $100,000 provided for . by the extension agreement, and on the'26th day of January, 1895, the defendants canceled the original contract of May 31, 1893, and by writing, under seal, mutually released each other from all claims and demands, the defendant hospital retaining the $100,000 paid upon the contract.
By the original contract, the hospital agreed to give Samuel a deed of the premises in fee simple, free from all incumbrances, and the law implied that the title should be a good one.
The plaintiff claimed that tile cancellation of the contract and the mutual releases made January 26, 1895, were made under mistake of fact, in that both parties understood and believed during the whole transaction that the hospital had good title to the property and power to convey such title free'from incumbrances, whereas in fact the title to the property was during all this time affected or limited by a condition that the premises should forev.er be used for the purposes of a hospital and chapel, and that the defendant hospital could not, therefore, at any time comply with the terms of the contract so as to entitle itself to retain the $100,000 paid by Samuel. Under this condition of things, it was claimed that Samuel was entitled to a cancellation of the agreement for extension of time and the agreement canceling the original contract, and tlié mutual releases between the parties, and to recover hack the $100,000. paid by. him. The plaintiff, as the assignee of Samuel of one-half of his interest in the contract and purchase money paid, brought this action based upon such claim.
The trial court held that there was in fact no defect in the hospital’s title, and that if there was, all the facts were known to both the parties, and that if there was any mistake at all it was a mistake as to the legal effect of such facts, which would not be sufficient to entitle the plaintiff or his assignor to a cancellation of the agreements and releases executed by the parties, and that no right to recover back the purchase money paid existed.
There seems to - be no doubt but that the facts as they really existed were known to Samuel as well as to the hospital prior to the time the extension and cancellation agreements and releases
[341]*341were made. And this being so, there could be no mutual mistake of fact under which the parties acted, which would enable Samuel to avoid such agreements Or releases. A mistake as to the legal effect of such facts would not enable either to avoid the agreements or releases. The more satisfactory ground for sus- • taming the decision of the .trial court, however, is that the hospital’s title was all the time perfect and unaffected by the condition referred to, as will appear from a review of the facts. The city of Hew York was the owner of the property in question, and in 1848 gave the deed of it to the “ Anglo-American Free Church of St. George the Martyr,” which contained the condition in question in the following words : “ Provided always that these presents are upon this express condition, that the said parties of the second part, their successors and assigns, shall and do within three years from the date hereof erect upon the said ground so conveyed to them erect
Thereafter, and on March 16, 1852, another deed was given by the city to the Church of St. George the Martyr for the purpose of correcting a clerical error in the description of the property,-which contained the following reference to the condition in question : il But it is hereby expressly declared by us, the.said Mayor, Aider-men and Commonalty of the City of Hew York, and to be taken as a part of these presents, that nothing herein- contained shall extend the grant, powers and benefit given or allowed to the Rector, Churchwardens cmd Vestrymen of the Anglo-American Free Church of Saint George the Martyr, their successors or assigns, in and by the said deed of the tenth day of May, 1848, and its extension, and that all provisos, conditions, acts, performance and stipulations on their part embraced therein or in either shall still control and be effective and in force against them.”
Thereafter, and on October 15, 1852, the Church of St. George the Martyr gave a deed of the, property to the defendant which contained the following reference to the condition in question: To have and to hold all and singular the said piece or parcel of ground, with the appurtenances unto the said parties of the second part, their successors and assigns forever, for the use and purposes of a hospital and chapel, subject, however, expressly to the conditions, covenants and agreements contained in the instrument of even date herewith, heretofore mentioned, and the true fulfillment of the same from time to time and at all times hereafter.”
The instrument- here referred to was not put in evidence, but it is assumed that the reference made is to the condition fully set out in the deed of 1848. Thereafter, and on Hovember 20, 1852, the city gave another deed of the property to the defendant hospital, which made no reference in any way to the condition in question, but which contained the ordinary -words of bargain, sale 'and release. All these deeds were put upon record. It is clear that by the latter deed the conditions imposed by the deed of 1848 upon the owner[343]*343ship of the property were wholly released and discharged. It is well settled that where a deed of property in fee is made, with a condition subsequent imposed and a right of re-entry reserved to the grantor, the right of re-entry is a mere right in action and not an interest in the land ; that it is not assignable nor gran table; that it descehds to the grantor’s heirs, but does not pass by a conveyance. And any deed by which the original grantor or his heirs undertakes to transfer, assign or grant the land or the reversion of it while it may be ineffectual to convey title to the grantee, does operate to put an end to the rights of the grantor. (6 Am. & Eng. Ency. of Law, 904; Underhill v. S. & W. R. R. Co., 20 Barb. 455; Post v. Weil, 8 Hun, 418; 2 Washb. Real Prop. [5th ed.] 14-16 ; Gerard Tit. to Real Est. [3d ed.] 118; Tinkham, v. Erie Railway Co., 53 Barb. 393, 396; De Peyster v. Michael, 6 N. Y. 468, 506; Nicoll v. N. Y. & Erie R. R. Co., 12 id. 121; Towle v. Remsen, 70 id. 305.)
The city, the grantor in the deed of 1848, which imposed the condition in question, by its later deed to the hospital defendant, sold, conveyed and released the property and all its interest therein, and this deed clearly operated to release the land from the condition. The right to re-enter for breach of condition was gone forever, and the condition has never, since that time, affected or restricted the hospital defendant’s interest in the property. ■ The case was properly disposed of by the trial court.
The judgment appealed from should be affirmed, with costs.
Barrett, Rumsey and Patterson, JJ., concurred; Tan Brunt, P. J., concurred in result.
Judgment affirmed, with costs.
Sic.