Parish v. Rogers

20 A.D. 279, 46 N.Y.S. 1058

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1897
• Status: Published

Opinions

Green, J.:

The precise question for determination, broadly stated, is whether the creation of estates for life in agricultural lands, with a reservation of rent, are prohibited by the Constitution; in other words, whether the instrument of grant • or lease creating such an estate is void ab initio. In ascertaining the true interpretation of this constitutional provision and in determining the extent or limits of its operation, we may be assisted in arriving at a just conclusion by a statement of certain general principles.

In Settle v. Van Evrea (49 N. Y. 280, 2S5) the court held that the restriction against certain judicial officers .acting as referees did not apply to “ Commissioners of Appeals ” because the clause in the Constitution there under consideration did not, by its terms, literally include those officers, though the same reasons must have existed for including the commissioners in the prohibition which were applicable to the Court of Appeals proper. Allen, J., stated the true principle of interpretation to be observed, in these words: - “ If, to meet exigencies and to prevent mischiefs, it is allowable sometimes to depart from the strict letter of a law and imply an intent not clearly expressed in the construction of ordinary statutes, which may be framed in. haste and with none of the formalities that attend the preparation and adoption of a State Constitution, it would be dangerous in the extreme* to extend the operation and effect of a written constitution by construction beyond the fair scope of its terms, merely because a restricted and more literal interpretation might be inconvenient or impolitic, or because a case may be ¡supposed to be, to some extent, within the reasons which led to . the introduction of some particular provision plain and precise in its terms. ■ .

“ That would be, pro tanto, to establish a new Constitution, and do for the'people what they have not done for themselves.'. The terms of the instrument being clear and free from doubt, and having a well-understood meaning and application, the better way is to stand upon the maxim ita lex soripta est, and leave any supposed defect or omission to be remedied by the people or by legislation. * * *

“ The prohibition is simple and direct, contained in a single paragraph, the terms of which are apposite, conveying a distinct and definite idea, and if they are extended, it can only be done by conjecture, as to the possible intent of the framers of the clause, and upon a theory as to some policy supposed to be shadowed forth. The effect of the prohibition cannot be enlarged by conjecture or implication.” (See, also, People ex rel. Williams v. Dayton, 55 N. Y. 367, 375; Countryman v. Norton, 21 Hun, 17, 19.)

If a lease or grant of an estate for life is to be judicially declared to be one “ for a longer period than twelve years,” and, therefore, obnoxious to the constitutional limitation, such adjudication must be founded, not upon the particular words or terms in which the prohibition is expressed, but rather upon some supposed principle of public policy. Or, in other words, that such a grant conies within the spirit of the provision, though not within the letter. But the application of such a principle of interpretation to a constitutional or statutory provision of this character, restricting, as it does, the right of free alienation of property, is not proper. The right of alienation being a fundamental right, it is subject only to such ■restrictions and limitations in its exercise as the Constitution may prescribe, either in express terms or by clear and necessary implication, or to such restrictions as the Legislature, acting within its constitutional powers, may deem proper to impose for the public good. A particular prohibition upon the free .alienation of jiroperty cannot be extended or enlarged beyond the terms in which the restriction is expressed by the application of any rule of liberal interpretation. On the contrary, the provision must be made to bear a restrictive interpretation, and be limited in its operation and effect by the language employed. If we hold that an estate for life is, per se, an estate exceeding twelve years in duration, and, therefore, void, it follows that such estates in agricultural lands, with a reservation of rent, are entirely abrogated, and the owner of property is prohibited from creating such an estate, either for his own life or that of another. The only way to avoid the constitutional, restriction would be to declare that the estate should cease at the expiration of twelve years if the grantor or grantee (as the case" may be) should then be living. The same result may well be' accomplished by giving effect to the constitutional provision that the grant or lease shall no longer be valid after twelve years, and by judicially declaring that thereupon the grant shall be void and the rent reserved shall cease. That upon the expiration.of that period the. reciprocal obligations of the parties are annulled by operation of law, the grantor is entitled to his land, and the grantee is free from the payment:of rent. It will be observed that, there is no declaration of intent to abrogate grants of life estates in agricultural lands in which rent or service of any kind shall be reserved; and since the creation of such estates is not prohibited, either in express terms or by necessary implication, it ill becomes the judiciary to declare such prohibition upon a mere presumption of intention nowhere indicated in the Constitution. The purpose of the enactment was not to interdict the creation of such estates, but to limit the period of time beyond which they shall not extend. Where the. term is specified in the lease and exceeds the limitation, it is void per se/ but where it is left indefinite and its termination, depends upon the contingency of death, which may happen within the period of limitation, it cannot be said, to ¡be void ipso facto, as being made for a period longer than twelve years. Non constat but that the estate will terminate within the period. It does not appear, therefore, from the terms of the grant that it will last "longer than twelve years. In respect to whether the grant is void upon its-face, the words “ longer period ” should be construed as meaning a definite period, and as not applicable to estates whose duration is wholly indefinite and uncertain in its duration. This grant is not, by its terms, a lease “ for a longer period than twelve years,” but for an indefinite time, which can only be made definite or fixed by the happening of a contingency, viz.,, death, which may occur within the limitation. The instrument cannot,-therefore, be said to create a term for a longer period than twelve years within- the meaning of the provision. The word “ period ” may mean an indefinite time, as well as a time specified, but it cannot have .that meaning here, for the word relates to a specified period, and this grant is for an indefinite time, which may expire within the period beyond which it cannot continue in legal operation or pffect. The purpose intended to be accomplished, or the mischief designed to be remedied or obviated by this enactment, viz., to prohibit the reservation of rent or service upon leases for long periods of years, may be sufficiently effectuated by upholding the validity of the life estate created 'until the time limited arrives, when the obligation to pay rent shall cease.

The learned judge (Spring, J.) who delivered the opinion in the court below, well says, that the instrument itself does not, in express terms,- come within the prohibition of the Constitution. The term may extend beyond the restricted period, or it may expire before that time. The provision curtails the rights of owners of estates. It places a restriction.upon the disposition of their property. And. in order to make this curtailment, this restriction, effective, the instrument itself should clearly come within the pale of the inhibition. That the court cannot hold as matter of law that this instrument will extend for a longer period than twelve years. Its termination depends upon providential interposition and not upon the volition of the parties, so there was no attempt to violate the Constitutional interdict, as in some of the cases. Mow, since the creation of life estates is not prohibited, the only effect the constitutional provision can have upon them is to limit their duration to a period beyond which they shall not extend.

The decisions under the clause of the Statute of Frauds, declaring void every parol agreement that by its terms is not to be performed within one year, have some application to this case by-way of analogy. Where the time of performance was made to depend ..upon the contingency of death, and though that did not in fact occur within twenty years, it was held not within the condemnation of the-statute. (Kent v. Kent, 62 N. Y. 560.)

And a verbal contract to build and maintain a switch for plaintiff’s benefit, for shipping purposes, “ so long as he needs it,”, is not within the statute, nor is it a grant of “ an estate * * - * for a term of more than one year, in lands and tenements,” or a “ contract for the sale of real estate or the lease thereof for a longer term than one year,” within the Texas Statute of Frauds. (Warner v. Texas & P. Ry. Co., 164 U. S. 435.)

In the case cited Gray, J., writes an elaborate opinion reviewing many of the authorities.

The principle upon which all these adjudications rest might well be invoked in support of the proposition that life estates do not come within the condemnation of a provision limiting the duration of estates for years; in other, words, that the specification of a time certain does not prohibit in any manner the creation of estates .for a time uncertain, and that such estates are valid and continue .in operation until the happening of the contingency upon which they are made to depend, even though they should extend beyond the period limited. It is. sufficient for the purposes of a decision* however, to hold that the provision is but a- limitation upon the duration of the life estate, and not one that annuls the instrument'of grant or lease by which it is created.

Reference may properly be made to the proceedings and debates in the Constitutional Convention of 1846. Mr. Brundage, one of the delegates, moved to insert after “ years ” the words “ or natural life of the grantee,”, and made this observation: “ The right to dispose of one’s property during one’s own life was a right which was inalienable, arid which he would not divest himself of or others.” The proposed amendment was negatived by a decisive vote — seventy-six to four. It is difficult to comprehend what was the particular purpose of the amendment, or what were the-reasons that, actuated the delegates in refusing to adopt it The effect of it would be to extend the duration of the estate beyond twelve years, if the lessee or grantee should so long survive. ■ Was that the reason why the amendment was rejected — with the intention that .the provision should stand as a limitation of all life estates, whether for that of the grantor or the grantee ? Or was it rejected because its effect would be to prevent an owner of agricultural lands from .creating an estate for his. own life, and that the convention did not propose to do? Or, in other words, that the creation and duration .of life estates should not be affected ? That the convention should remain silent upon that subject ? That legislation respecting chattels real must necessarily be construed to be applicable to freehold estates, either as prohibiting their creation or as a limitation upon their duration ?

This, I believe, is the first instance, in. the history of the law, of an attempt by legislative act to limit the duration of an estate of freehold by a term of years. It is inconceivable that the convern • tion should have intended to abrogate or limit freehold estates without making any-mention of them in a provision impairing the free disposition of property. It should be observed here that Mr. Brundage’s remark is charged with ambiguity. He says he would not restrict the right of one to dispose of his property during his-own life, and yet that was what he proposed to do by the amendment offered, for the effect of it would be to prevent the creation of an estate that would continue for the life of the creator. It is evb dent, however, that he did not understand that the original provision affected life estates in any manner.

In Stephens v. Reynolds (6 N. Y. 454) it was held that a lease-for life, conditioned that the lessee should occupy the land and support the lessor for life, was not within the constitutional inhibition.

In Parsell v. Stryker (41 N. Y. 480) there was a lease for life, with an agreement to work the premises on shares, and the court held that, as no rent, as such, was reserved, the lease was valid.

t is true that the court was not called upon in those cases to decide that a life estate, with a reservation of rent or service, came within the condemnation of the Constitution, as well as an estate for years — since it was determined that there was no reservation of rent or service— yet the opinions of the judges indicate that it was their understanding that the Constitution was intended to apply to estates for life, and the opinions of those eminent judges are entitled to much consideration, and especially so as to Ruggles, Ch. J., who was a member of the convention and concurred in the opinions, in 6 New York, 454. In deference to these opinions we are constrained to hold that estates for life are affected by the Constitution. Still, it by no means follows that life estates in such lands were-intended to be abrogated, and since there is no declaration to that, effect, the Constitution may properly and rightly be construed to-operate simply as a limitation upon the period of their continuance. It is neither declared that leases for life shall be void, or shall not be valid, or that they shall not be created in respect of agricultural lands. Nor is it declared that all leases shall be for a term, of years, and not otherwise created. And, in analogy to the rule respecting-legislative acts," w.e are not at liberty to declare the grant void, because in our opinion it is opposed to a spirit supposed to pervade the Constitution, but not expressed in words. (Cooley Const. Lim. (5.th ed.] p. 205.)

• .It. is .unnecessary , to allude to the provisions of the Revised Statutes respecting suspension of power of alienation beyond two-lives in being, or. as to remainders on successive estates for life beyond two livés. I do not perceive that these provisions; have ■application to reversions. The latter provision only speaks of remainders limited, on successive life estates, and I do not find a provision restricting the power to make a lease depending, say, upon ¡the life of the lessor, his children, issue or descendants, etc. In the latter instance, is the absolute power of alienation suspended, even ■if it is expressly made to last as long as the life of the survivor of half a dozen lives? . Since the fee may always be conveyed subject to the life estate. (See Chapl. Susp. Alien. 129, 1-3; Purdy v. Hayt, 92 N. Y. 451.)

We conclude, therefore, that ■ the ' public policy declared by the Constitution will not be violated by giving effect and operation to the life estate created until the expiration of the period limited by the Constitution.

The judgment, therefore, should be affirmed,, with costs.

Hardin, P. J., concurred, with opinion; Ward, J., concurred; Follett, J., dissented, with opinion in which Adams, J., concurred.

Hardin, P. J. :

On the 25th day of February, 1888, Elisha Parish was the owner of the premises described in the complaint. On that day he éxe■cuted a lease to Rogers, the defendant, which was “ for and during the term of the natural life of the party of the first part and .his wife,, Cynthia Parish, from the first day of April, 1888, which term, will, end when the- natural life of Elisha IE and Cynthia Parish terminates and ends.” ■

The inhibition of article 1, section 13, of the Constitution is ¡against the execution of a leaseof grant' of agricultural lands ‘‘ for a longer period than twelve years.” The period mentioned in the lease may not be twelve months. From the terms of the instrument itself it cannot be demonstrated that it will carry to the lessee the fight to occupy “ for a period longer than twelve years.” However, if it be said that the lease was against the literal language of the constitutional provision, then it was void in its inception. That being so, the lessor and testator was the owner of the land at the time of the execution of his will and' at the time of his death, which occurred on the 14th day of March, 1889 His will was dated on the 25th day of July, 1888. In the will of the testator, in which he gives to his son George, the plaintiff here, the land described in the complaint, the testator asserts his ownership of the lands, and that they are occupied and carried on by Rogers, and that the rent ■is to be paid to Cynthia Parish, the wife of the testator, after his death. And' he supplements that declaration by saying in his will, viz.: “ And as she is to have the said rent as therein specified.” It is manifest that it was the intention of the testator that his wife, Cynthia, should enjoy the use of the premises during her natural life. It maybe such enjoyment and occupation will fall short of twelve years. ■•

In Hart v. Hart (22 Barb. 606) it was held that a lease of agricultural lands for twelve years, “ with a ■ covenant of renewal for twelve years longer if the lessor shall live,” was good for the first twelve years. .

In the course of the opinion delivered in Clark v. Barnes (76 N. Y. 304) it was said, in speaking of the constitutional provision, viz.: “ This provision condemns all leases for a longer period than twelve years. A lease for a longer period than that would not be valid for twelve' years, but the lease itself would be void m toto.” In that ease a stipulation had been entered into to execute two leases of the same farm, one for eight years and another for twelve years from the termination of the first, and the two leases were construed ■ together, and, therefore, it was declared that they were both void inasmuch as they, in terms, provided for a period beyond that mentioned in the constitutional restriction.

To allow the plaintiff to recover possession of the lands would defeat the intention of the testator.

Under the circumstances of this case I am inclined to vote.for an affirmance.