#### Jeremiah Towle, plaintiff and respondent *vs.*Jacob M. Palmer *et al.*defendants and appellants.

1. The proviso in the act of April 3,1807, by which it is declared that the proprietors of lands adjacent shall have the pre-emptive right in all grants made by the corporation of the city of New York of the lands under water in the Hudson river, granted to the city by that act, is a mere restraint on alienation, which can be waived.by the original grantors, the state; and does not confer any legal right to, or interest in, such lands under water, upon the proprietors of the adjacent uplands.

2. Por a breach of the proviso, by the act of the'corporation in granting to one who is not the true owner of the adjacent upland, the state, only, can re-enter; and until it does so, such a grant can not be annulled in a collateral inquiry.

3. In determining whether a condition in a deed is precedent or subsequent, the main test is whether the vesting of the estate granted by the instrument containing it, is postponed until the happening of the contingent event forming the condition, or is to be divested by it.

4. Where a municipal corporation, owning lancls under water, in which the proprietors of adjacent upland had by law a pre-emptive right, granted the same to persons claiming to be such proprietors, by a deed which bound the grantees to pay an annual rent with a right of distress and re-entry by the corporation in default, also bound the grantees to fill in and construct streets, &e. with a right of re-entry by the corporation in default, with a further clause declaring that the deed and the estate granted were upon the condition, that, if at any time thereafter it should appear either that the grantees were not at the date *438of the grant, proprietors of the upland, or if they should make any default in performance of their covenants, the grant should he absolutely null and void, and the grantors might re-enter, &c.

*Held,*that this created not a precedent but a subsequent condition, as well as to the proprietorship of the uplands as respecting the performance of covenants ; and upon its subsequently appearing that the grantees were not the true proprietors of the upland, their title was not divested so as to enable the true proprietor, on receiving a subsequent grant from the corporation, to recover the land from the first grantees, without the aid of any proceedings by the corporation or the state to annul the first grant.

5. Notwithstanding the pre-emptive right, the corporation could make such first grant, subject to he _ divested by state action, and could not convey their right of entry for a breach of the condition. (Bosworth, Ch. J. dissented.)

6. Where different parties claim the same premises under conflicting grants from the same source, each grant being upon condition that the grantee is the true owner of adjacent lands, possession under such grant, by the one,who was not ■ the true owner of the adjacent lands can not be deemed adverse so as to ripen into a title as against the other.

7. In an action by the true owner of the adjacent lands, to recover the premises granted, evidence of his recovery of the adjacent lands against third persons,is not irrelevant, he being required to establish his title independently of such recovery. *Per*Bosworth, Ch. J.)

(Before Bosworth, Ch. J. and Robertson and Barbour, JJ.)

Heard December 12, 1862;

decided December 5, 1863.

Appeal by tbe defendants from a judgment entered on a verdict against them.

The action was brought to recover a par.t of a lot of land on the north side of Twenty-fifth street, in the city of New York, 475 feet west of the Tenth avenue, which the plaintiff claimed in fee, alleging that the defendants pretended to claim some right thereto ; but their claim was unlawful. . The defendants were Jacob A. Palmer and Isaac E. Smith, the latter of whom was a tenant, holding under the former.

The cause was tried on the 16th day of December, 1861, before Mr. Justice Moncejee and a jury.

The land lay originally in the Hudson river, 395 feet west of high water mark, and 271 feet west of low water mark.

Both parties claimed, under conflicting grants by the corporation of the city af New York, which resulted from a controversy as to the title of two lots upon the original hank or upland, in front of which the premises now in question lay.

*439These two lots, designated in these proceedings as Nos. 117 and 118, were formerly the property of one Mary Clarke. The plaintiff claimed, under various mesne conveyances from Thomas B. Clarke, a beneficiary named in her will. The defendants claimed under her heirs, who were also devisees under the will. The title had long been in litigation.

The plaintiff, after giving in evidence the deeds under which he claimed the two upland lots, proved that in 1849 he brought an action in this court, against one John Farney, to recover lot 118, who held the same under the heirs and devisees, and who appeared and set up that claim as a defense in the action ; and that the plaintiff recovered judgment declaring the title to be in him, and awarding him possession ; and that on appeal this judgment was affirmed by the Court of Appeals, and had been duly executed by putting the plaintiff in possession. These facts were proved by the judgment roll in that action, which was admitted in evidence against the objection and exception of the present defendants. In the same manner, the plaintiff was allowed to prove a like recovery from Cortlandt Wood, of lot No. 117, which had been claimed by him under the same heirs and devisees.

He also read in evidence the statute of April 3, 1807, by which the state of New York granted to the city of New York certain lands under water, in front of this bank of the Hudson, *“*provided always, that the proprietor, or proprietors, of. the lands adjacent shall have the pre-emptive right, in all grants made by the corporation of the said city,” in such lands under water. He also read the acts of February 5,1826, and of April 12,1837, of similar character. And he put in evidence' a grant to himself from the city corporation, dated November 29, 1859, and conveying premises described as water lot and vacant ground or soil to be made land, which included the lot in question in this action. He also produced another instrument, executed by the corporation, reciting that they had previously granted water lots, including these premises, to the heirs of Mary Clarke, and that the plaintiff had represented that he had established his title thereto, and releasing and quit claim*440ing them in' consideration of payment of a gross sum in lieu of' rents.

The defendants, to prove title in Palmer, put in evidence the previous conveyance by the city to the heirs of Mary Clarke, which included the premises in question. This deed was dated March 31, 1837'; and the city and the heirs were the only parties thereto. It reserved certain annual rents to the city, with a right to distrain or to re-enter for non-payment. The grantees covenanted, also, to fill in the parts of the water lot necessary for thé streets, at their own expense, whenever required by, and according to the directions of the city. The city also covenanted that thé grantees might enjoy the wharf-age from the water front lying between the streets as extended. After these provisions, the deed contained the following clauses :

“ And 'it is hereby further covenanted and agreed by and between the said parties to these presents, and the true intent and meaning thereof is hereby declared- to be, that this present grant, or any words, matter, or thing in the -same contained shall not be deemed, construed, or taken- to be a covenant or covenants of warranty or seisin of the said parties of the first part, or their successors, nor to operate further than to pass the estate; right, title, or interest they have or may lawfully claim by virtue of their several charters and various acts of the legislature of the people of the state of New York; and it,is further expressly understood and agreed, and thesé presents and the estate hereby granted, are upon this express condition, that if, at any time hereafter, it shall appear that the said parties of the second part were not, at the time of -the date of these presents, seized of a good, sure, absolute, and indefeasible estate of inheritance in fee simple of, in, and to the lands and premises on -the- easterly side of the line of high water, and adjoining to the water lot and ground under water hereby conveyed;- or so intended to be; or if the said parties of the second part, their heirs, executors,- administrators or assigns, shall -make default in the performance of any or either of the covenants above contained on their part and behalf to be observed, performed, fulfilled, and kept; then, and in every *441such case, these presents, and every article, clause, and thing herein contained, shall he absolutely null and void, and the said parties of the first part and their successors shall, and may forthwith thereupon enter into and upon the said premises hereby granted, and shall thereafter be seised of the said premises, with the appurtenances, free, clear, and discharged of and from any claim, right, or pretence of claim or right, of the said parties of the second part, their heirs or assigns, any thing herein contained to the contrary notwithstanding."

The defendants gave evidence tending to show that upon the execution of the said grant of March 31,1837, the grantees therein named entered into the possession of the premises thus granted, under claim of title, exclusive of any other right, founding such claim upon the said grant, and built a bulkhead on the Eleventh avenue, and filled up the space between the same and the original shore, and that they have been in continued occupation and possession of the said premises .under such claim ever since, by themselves and grantees, and had conveyed the lot in question to the defendant, Isaac E. Smith, who had let the same to the other defendant Jacob M. Palmer.

The court instructed the jury, among other things, that the acts of 1807 and 1826 and 1837 gave to the mayor, aldermen and commonality of the city of New York a fee to the land in question, with a limitation as to disposal; and that any grant or disposition thereof by the mayor, &c. contrary to, or in contravention of, the terms of such limitation, was absolutely void- and the grantees thereby would take no interest or estate whatever. And that if the heirs under whom the defendants claimed were not the legal owners of the upland lots 117 and 118 in 1837, the corporation grant to them was void in its inception, except that it gave a qualified possession or license to enter, and passed no estate or interest whatever to the land in question.

In regard to the title of the plaintiff to those lots, he stated that if they found him to be owner, they must do so irrespective of any decree or judgment in the case of *Towle*v. *Farney;*he must prove his title in this suit to the lots Nos. *442117 and 118, precisely the same as he was required to do in that case.

And as to the question whether the defendants had not made out an adverse possession for twenty years: That, if they went into the possession of the premises in question under the grant to them in the year 1837, by commencing to fill up the land immediately in -front of lots Kos. 117 and 118, covered by water, and progressed without any interruption, and had been in that possession from the 24th of February, 1840, they would be entitled to a verdict. But if they commenced to fill up in 1837, and ceased or abandoned the work, then that possession would not be such as the law requires to give them title, by reason of holding adverse possession.

The defendants excepted to the first and third of the points above stated in the charge. The jury found a verdict for the plaintiff; and judgment having been entered thereon, the defendants' appealed.

*David Dudley Field,*for the defendants, appellants.

I. The first and second exceptions to evidence relating to the two judgments were well taken. The judgment rolls in actions between the plaintiff and third persons could not possibly bind the defendants in this action.

II. It was error to charge that the grant of 1837 was void; not only upon the true construction of the statutes, but because, not being void on its face, the court could not pass upon that question in this action. *(Nott*v. *Thayer,*2 *Bosw.*10. *Jackson*v. *Lawton,*10 *John.*23. *People*v. *Mauran, 5 Denio, 389, 399.)*The validity of a patent or grant, which is matter of record, can not be questioned in a collateral proceeding. The rule is founded Upon the principle that a record can not be overthrown except by the judgment of a court on an issue upon the precise question of its validity. *(People*v. *Mauran,*5 *Denio,*389. *Bledsoe*v. *Well,*4 *Bibb,*329. *Jackson*v. *Lawton,*10 *John.*23. *Jackson*v. *Marsh,*6 *Cowen,*281. *Bagnell v. Broderick,*13 *Peters,*436. *Jackson*v. *Hart,*12 *John.*77.)

*443III. The grant to Bayard Clarke and others vested the title in them, subject to be defeated by the condition subsequent, in respect to what might afterwards appear on the subject of the title to the upland. (4 *Kent’s Com.*4, 125. 2 *Blackst. Com.*154. 1 *Wash, on R. P.*466. *Finlay*v. *King,*3 *Peters,*377. *Underhill*v. *Saratoga R. R. Co.,*20 *Barb.*455. *Nicoll*v. *New York and Erie R. R. Co.,*12 *N. Y. Rep.*137. *Finlay*v. *King’s Lessee,*3 *Peters,*377. *Armstrong*v. *Carson’s Execrs.*2 *Dallas,*317. *Rogan*v. *Walker,*1 *Wis.*133. *Phelps*v. *Chesson,*12 *Ired. Law,*199.)

*N. Dane Ellingwood,*for the plaintiff, respondent.

I. The grant from the corporation to the heirs of Mary Clarke is, in effect, a grant of an estate in fee, limited upon a condition precedent. 1st. It clearly was not the intention of the grantors to vest any estate whatever in the grantees, unless they were, at the time of the making of such grant, the owners of the upland. 2d. This was made, expressly, the condition of the grant, and it conforms with the restriction contained in the grants from the state to the grantors. *(Act of*1807, § 15, *Davies’ Laws,*434.) 3d. The words, “ If at any time hereafter it shall appear,” used in the grant, do not make the condition, itself, any less a condition precedent. *(a.)*The condition was that the grantees were, at the time of the making of the grant, the owners of the upland. If this were not true (whether such fact was known or not at the time of the making of the grant) the grant was void at its inception. *(b.)*It was not the subsequent discovery that constitutes the breach of the condition; the breach consists in the fact that the grantees were not, *at the time of the making of the grant, the owners of the upland.)*

II. If the grant be deemed a conveyance in fee, limited upon a condition precedent, and if the fact be, that the grantees were not, at the time of the making of the grant, the owners of the upland, then no estate, whatever, was vested in the grantees under such grant. (2 *Bro. C. R.*456, 441. *4441 *Vernon,*83. 2 *id.*333. 5 *Viner,*87. 4 *Kent’s Com. 8th ed.*129.) '

' III.' Supposing that a void deed can he made the basis of an adverse possession, a party claiming title by possession must not only ■ show that such possession was adverse in its character, at the time of the execution of the grant under which he claims, but also that such possession was- continuous and uninterrupted.

. IV. The charge was correct as to the effect of the statute, and the validity of the grant to the heirs Of Mary Clarke, and. as to the adverse possession.

V. The records in the cases of *Towle*v. *Farney,*and *Towle*v. *Wood,*were properly admitted in evidence. 1st. These records were not introduced for the purpose of concluding the defendant, "tint as tending to show that the grant to the' heirs of Mary Clarke was void, and also to show *the time when*the title to the upland was first brought *in*question. 2d. The court, in the charge to the jury, directed them to find the title to the upland, irrespective of those records.

By the Court, Robertson, J.

The plaintiff is bound to make out one or more of the following principles to entitle him to recover in this action.

1st. That the proviso in the statute of 1807, *(Laws relating to City of New York,*435, § 15, *Davies,)*under which the corporation of the city of New York derived title to the lands in controvei’sy, requiring them in case of any conveyance of such lands, to recognize a pre-emptive right in the owners of the adjacent upland, operated not merely as a partial restraint on alienation by such corporation, but conferred some new positive indefeasible right to, or interest in, such lands, upon such owners of the upland.

2d. That according to the legal interpretation of the language of the grant to the heirs of Mrs. Clarke, the condition therein contained, defeating it, in case they should not prove' to be the .owners of the upland,'was precedent and not subsequent to ' the vesting of any estate by virtue thereof.

*4453d. That the right of forfeiture and re-entry, in case such condition were determined so as to defeat the estate conveyed by such grant, could be transferred by such city corporation to those -under whom the plaintiff claimed.

I omit to inquire, as unnecessary for the present, whether the subjection of the grant to such corporation, by the statute before mentioned, to a right of pre-emption by riparian owners in case of alienation by the former, would convert the condition in such Clarke grant into a precedent one; although not made so by the terms of the instrument itseif, construed according to their legal import and effect, or would render the grant itself absolutely void because not made subject to such a condition precedent. The principles already stated require first to be disposed of as if the adjacent riparian owners had no right available in law by them, in their own names, or if the condition before mentioned was subsequent, and the right of re-entry for its happening could not be conveyed by the city corporation, the plaintiff' could not recover.

As to such first principle, it is to be observed that the people of the state of New York could grant lands absolutely or conditionally, by an act of the legislature directly, or by an agent authorized under such an act; that in case of an absolute grant, the legislature could not repeal such act so as to avoid such grant; and that in case of a conditional grant it would only re-enter by proceedings taken to annul such grant, *(People*v. *Mauran, 5 Denio,*389 ; *Williams*v. *Sheldon,*10 *Wend.*654; *Jackson*v. *Marsh, 6 Cowen,*281; *Jackson*v. *Lawton,*10 *John.*22; *Same*v. *Hart,*12 *id.*76; *Bledsoe*v. *Well,*4 Bibb, 329 ; *Bassell*v. *Broderick, supra;)*unless in case of a condition precedent. Thus, grants of land under water, by the commissioners of the land office, in all other parts of the state except the city of New York, are declared by statute to be void, unless made to the owners of the adjacent upland, (1 *R. S.*208, § 67,) in order to accomplish that specific result. Prior statutes on the subject differed therein from such statute, (2 *Rev. Notes, p*29; 1 *N. Y. L. (Greenl.*284, § 18; 1 *L. N. Y. K. &. R.*299, § 11; 1 *R. S.**446292, § 4;) and received a different construction judicially, *(Champlain & St. L. R. R. Co.*v. *Valentine,*19 *Barb.*484;) and a prior statute not containing such express provision avoiding a grant, but one similar to the statute under consideration, was also differently construed, in a case *(People*v. *Mauran, ubi supra,)*where an attempt was made to impeach collaterally the validity of' a grant by the commissioners of the land office, by showing that the grantor was not owner of the adjacent upland.

The well known, mode, in a statute, of restraining, or qualifying a right previously granted by a *proviso,*can not be used to extend one, particularly when it immediately succeeds the grant intended to be restrained or qualified. *(Dwarris on*" *Statutes.)*And it is very evident that the *proviso*under consideration could not take or have any effect while the city corporation should continue to hold the property granted, even if perpetually. During the term the land under water was so held, the upland might pass through a hundred hands, be subdivided 'into numerous parcels, and each be held by different intricate and embarrassed' titles. Ho title to the land under water would follow such changes of right to the upland, but a mere possibility, only available in case the city corporation undertook to alienate the former, and to be protected by proceedings to annul the prohibited grants. There is nothing to prevent a repeal by the legislature of the proviso in reference to grants by the city corporation of lands, under' the statute of 1807, so as to leave the latter free to grant them to whomsoever they please. It is a mere restraint of alienation which can be waived by the original grantors, *the state;*and is possibly valid because limited to particular grantees. If the state had intended to carry out a settled plan or policy to favor riparian owners in the grant of adjacent lands underwater, to be carried out by a municipal corporation within whose jurisdiction they might lie, they would have vested some right or definite interest in such riparian owners, and not merely have reserved a well known common law right to themselves to divest the grantees of such lands from such corporation of *447their right, by legal proceedings. ' It would be dangerous, therefore, to conclude that because the legislature has shown some inclination to favor adjacent riparian owners, they necessarily must have conferred on them a legal right.

No case has been pointed out to me, nor have I been able to find any, in which the reservation by a grantor, whether a public body or an individual, of the right of annulling a grant by his grantor of lands, in case the latter did not give a preference to certain designated persons, could be recognized in a court of law at the instance of such preferred persons. Definite rights, or even good will in the pre-emption of lands given to such preferred persons, are so cognizable, *(Armour*v. *Alexander,*10 *Paige,*571.; *Craig*v. *Tappin,*2 *Sandf. Ch.*78; *Lytle*v. *The State of Arkansas,*9 *How. S. Ct.*314;) but not in case of a mere reservation to a grantor. The state clearly has a right to re-enter for breach of the proviso, and hold, as it originally held the lands so re-entered upon; and the upland owner could have no right, as against it. I am satisfied thus far, that none of those under whom the plaintiff claimed derived any title to the lands in question from their riparian ownership of adjacent lands, cognizable in a court; that for the breach of the proviso in the statute, the state only could re-enter, until which time no grant by the city corporation could by virtue of any thing contained in the statute of 1807 be annulled in a collateral inquiry. It is not necessary to re-' cur to the mischievous consequences of giving a different effect to such statute in regard" to land in the city of New York of great value, with intricate and confused titles, including the unavoidable retardations of the objects proposed to be gained by such statute as therein recited, preferring to rely on its plain provisions, and technical reservation of a well known right which would enable the state to carry out what policy it pleased.

The corporation of the city of New York having thus an absolute right to make an unconditional grant of the lands under water, granted to them under the statute of 1807, before mentioned, defeasible only by action of the state; the *448next question that arises is, whether the grant which they made to the heirs of Mrs. Clarke (which is conceded to be conditional,) was subject to a precedent or a subsequent condition. ' It is true, in regard to both subsequent and precedent conditions, that while no formal words are necessary to create them, there are no technical words of such strength in expressing a condition to be either, that will prevent a manifest intention, appearing on the face of the instrument to the contrary, from causing it to be construed as the other. But that is a principle prevailing in regard to every estate, interest or defeasance created by deed ; and such must be deemed to be the extent of the language used in such cases as *Nicoll*v. *N. Y. & Erie R. R. Co.*(12 *N. Y. Rep.*121.) Neither kinds are favorites with the law; but if there be any difference in that respect, precedent ones are least so, *(Craig*v. *Wells,*11 *N. Y. Rep.*315,) because they prevent any thing from passing by a deed. Nothing can dispense with their performance, except what may amount to a new grant, (4 *Kent’s Com.*125 ; 2 *Black. Com.*154;) while a condition subsequent may be waived or released. (1 *Washb. on Real Pr.*446.)

The usual form of a condition precedent is to convey the land upon condition, either that the grantee do or abstain from doing something, or that something has happened or failed to happen, before the vesting of the estate, without any additional words of forfeiture, right of entry, or. declaration that the instrument shall be void on the occurrence of the event which forms the condition, which additional words are not necessary. . (1 *Shep. Touch.*121, *et seq.)*The form of a condition subsequent is that the estate shall be divested, cease, be annulled, or some equivalent expression, and that a right of re-entry shall arise, on the happening of the event constituting such condition. The main question to be determined in regard to the construction of all conditions is, whether the vesting of the estate granted by the ' instrument containing them is postponed until the happening of the contingent event forming the condition, or is to be divested by it. If any thing, therefore, is required by such instrument to be done by *449the gfantee in it, involving the possession of an estate hy him, or a right of possession, it would go far to determine, the character of the condition. The nature of the event or contingency forming the condition, the time required for the occurrence, as well as its adaptability to either following or preceding the vesting of the estate, may be considered in determining the nature of the condition. *(Underhill*v. *Saratoga R. R. Co.,*20 *Barb.*455. *Armstrong*v. *Carson, 2 Dall.*317. *Nicoll*v. *Erie R. R. Co., ubi supra. Finlay*v. *King’s Lessee,*3 *Peters,*346.)

In this case the grant to the heirs of Mrs. Clarke was a bipartite indenture, to which the corporation of New York was party of the first part, and such heirs by name parties of the second part. The consideration of it, as expressed in it, was the payment and performance, by the grantee, of the rents and covenants therein mentioned. The rent was a certain annual sum of money, without rebate for taxes. For any arrears in the payment of such rent, the city corporation was to have a right to distrain and re-enter. Besides the covenant to pay rent, one of the other covénants of the grantees, who also executed such grant, was, that they would build bulkheads and fill up roads thirty feet wide over such premises, to become public streets, and keep them in repair ; which was followed by a clause of re-entry in case of failure to do sb within a certain time. If also contained a covenant by the grantors to permit the grantees to collect wharfage from such premises except from the end of the streets. This was followed by a clause which declared as follows, viz: That it was expressly understood and agreed, and those presents and the estate thereby granted, were upon the express condition, that if at any time thereafter it should, appear either that the grantees .were not at the date of those presents, seised of an absolute and indefeasible estate of inheritance in fee simple in the premises on the easterly line of high-water, and adjoining the land conveyed by such grant, or if they should make any default in the performance of any of the covenants, then those presents and every thing therein contained should be null and *450void; the grantors and their successors might forthwith- enter upon the premises thereby granted, and should thereafter be seised of the premises, discharged of any claim of the grantees.

It is not possible by any forced construction, however ingenious, to make the two conditions contained in such a clause, so differ in their character, that while the non-performance of the second condition in relation to covenants should be entirely subsequent, the first should be precedent to the vesting of the estate; such a construction would make the word “then” not refer at all to that first condition, while it would render all the subsequent clauses of annulling the deed, right of re-entry and re-seisin inapplicable and unnecessary to cutting off the grantees from any rights so far as such first conditions was concerned. It is very clear that the second condition was a *subsequent*one, because it consisted of doing some thing, which might require a period of time in which to be completed, and the payment of a perpetual rent. The clause of re-entry and re-seisin is conclusive upon the question of an intent that an estate should vest, since otherwise they would be wholly unnecessary. (Ro*gan*v. Walker, 1 *Wis. Rep.*133. *Phelps*v. *Chesson,*12 *Ired. L.*199.) As the two conditions, with the clause, which details the consequences of their happening, can not be separated in character, the first must be a condition' subsequent as well as the second.

But the words uséd expressly make the first ‘condition point not to an existing state of facts alone, but to some thing future. They are, *“If at any time hereafter, it shall appear*that the grantées were *not at,” &o.*Such a phrase looks forward to a future occurrence, to wit, the time of such appearance,. and considers him as looking back to.the date of the deed, by the past tense *(“were”)*instead of the present. I do not well understand by what process of reasoning such words can be disregarded, or their force explained away, unless on the theory presently to be noticed and already alluded to, that such grant or conditions subsequent being illegal, it is to be presumed that the condition could not be *451construed to be any thing but precedent, whatever words were employed.

If we are at liberty to look at the whole scope and object of the deed in order to throw light upon the character of the condition, they plainly show an intent, on the part of the grantees to acquiesce in that intent. The former covenanted to fill'the whole premises with earth, so as to rise above the water, and surrender part of that so filled up for public use. Was it intended thereby, that the supposed owners of the upland should lie by and seize on the fruits of their labor and expenditure, without compensation, leaving the grantees liable for the rent, which was part of the consideration for the conveyance. This would have been the extreme of folly on the part of the grantees. As it was the interest and duty of the grantors, under the grant to them of the state, to have such covenants performed, they agreed if they were performed by others to allow them at least to reap the benefit of such performance, until some other person should make his prior right appear.

The argument against holding such condition to be *subsequent,*seems to consist of the following propositions: *First,*That the corporation could not lawfully convey the premises" to any one but riparian owners, unless the latter renounced their pre-emptive rights. *Second,*That not being owners with full power of alienation to all persons whatsoever, they were not the only persons' interested in the condition in question, or designed to be protected by it. *Third,*That the riparian owners are consequently not to be considered as strangers to such grant, but as having a legal right which it protects. And therefore the Clarke grant should be construed in reference to such duty of the corporation to such riparian owners. The whole of this argument evidently turns on the assumption that the act of the legislature of 1807 and the grant in pursuance thereof by the commissioners of the land office, by forbidding the alienation of the lands thereby granted to any one except the riparian owners without the renunciation by the latter of such right, conferred on such owners vested legal *452rights, to be protected by, and capable of being enforced against the corporation, and must stand or fall with it. What I have already said . on that point suffices to dispose of that assumption.

But it is said, that as the character of a condition depends, not on any form of words, but the intention of the parties, and as the corporation under the rules of construction already alluded to must be presumed to have intended to exercise only its legitimate authority and to protect those whom it was its duty to protect, viz. the riparian owners, the condition in question must, if possible, be interpreted as a condition precedent. It is further contended that the clause immediately preceding such condition by which the meaning and intent of ■ such grant was declared to be, that it should *“*not be *construed*to. operate *further*than to pass the title or interest they *have*or might *claim*by virtue of their charters and *various acts of the legislature of this state,”*with .the language of • the conditions *itself*which follows it, shows a purpose not to interfere with or prejudice any pre-emptive rights. If that were so, it is singular that no more distinct announcements of such purpose had beem adopted. But in fact the purpose of such preceding clause appears to have been merely for abundant caution, to avoid all responsibility for the title, and not to protect the right of a riparian owner who is not mentioned, which if it existed could not be taken away against his consent. That right would prevail, if at all, with much greater force against the grantees than the grantors *;*and would not rely for protection upon a condition which would merely revest the title in the grantors, and leave the riparian owners to enforce their right as they best might. As to any indication of purpose in the language of the qondition itself, that is best shown by its legal effect, which could only be, in any case, to divest the grantees of their rights, but not to give to the owner of the pre-emptive right any additional power. In addition to the positive and express language contained in such clause and condition, therefore, I can not perceive a clear purpose to do any thing except what they effect, to wit: To protect the grantors *453against any liability, and reserve a right to re-enter upon the determination of such condition. Ho court is at liberty, to overlook the natural meaning of language used by the parties, in the instrument adopted by them to effectuate their intention, for the purpose of so modifying it as to comport with a supposed matter of policy or even duty.

This leads me to the *third*proposition already referred to as*ne of the foundations of the plaintiff’s right to recover, to wit; That the grant by the corporation, to the parties through whom the plaintiff claims, enabled him to recover against the defendants without the aid of any proceedings taken by the corporation itself. In a lease for years, it depends upon the question whether the estate was made absolutely to terminate • on the determination of a condition subsequent contained in it, or only a right of re-entry was given, as in the former case it would cease at' once. *(Parmelee*v. *Oswego and Syracuse R. R. Co.,*6 *N. Y. Rep.*74. *S. C.*7 *Barb.*599. *Stuyvesant*v. *Davis,*9 *Paige,*427.) In regard to a conveyance in fee, however, the happening of a condition subsequent would not absolutely revest the title in the grantor. Upon its determination, the interest of the.grantor and his representatives becomes a mere possibility of reverter, incapable of being assigned. *(Nicoll*v. *New York and Erie R. R. Co., ubi supra. Phœnix*v. *Commissioners of Emigration,*12 *How. Pr.*1.) Of course if the condition in question be subsequent,, the present plaintiff can not take advantage of it.

The very result last mentioned is sought to be availed of to fortify the argument already alluded to, founded on a supposed- duty and intention of the corporation in the'reservations in the Clarke grant - as establishing that it could not have been intended to be brought about. But without some grant under which the* riparian owners could claim, they were powerless' to overthrow the Clarke grant, and they certainly derived no new powers from it, or any thing contained in it. The fact that they' are now in a position to claim some rights if the Clarke grant is held for naught, by" virtue of a grant from *454the grantors of it, gives color to the idea that they must have been the persons intended to have the benefit of the condition in question, but that alone could not, in law, give them a positive right to avail themselves of such a reservation when not mentioned therein.

If any argument .is to be drawn in favor of either view of the statute of 1807, or of the terms of the Clarke grant, on the ground of inconvenience in-the former case or great injustice in the latter, it is in favor of the present defendants. If the statute is regarded as a grant of a right to riparian owners, cognizable in a court of law, and no grant could be made by the corporation until it was ascertained who those owners were, or if every grantee from them took his grant subject to the risk of a mistake by them, it is very evident that the progress of filling up and making streets, which is declared to be the object of such statute, would be. very slow. The corporation is not endowed with any means of determining the ownership of the upland, and it is a matter of every day experience that slight matters, not easily noticeable or discoverable, may subvert- a title. In the meantime the interests of the city of Hew York must suffer from the delay, unless the corporation itself should enter upon the enormous expense of filling up a large space of land on its borders under water. If the legislature had intended the riparian owners according to their interest to' acquire forthwith a right to the land under water, they would have granted it to them directly. But their legislation was conducted in such form as to reserve to themselves control over the grant in case it was not made to the right person. It was not to he supposed that after a grantee of the corporation had expended immense sums of money in filling up land under water, under a pardonable mistake of ownership, they would be so unjust as to wrest the fruits of their labor and expenditure from them for the benefit of any one who might turn out to be technically .the true owners, although they never asserted their rights, but lay by and saw the improvement advancing, without notice or remonstrance. If the Clarke grant be construed to vest no estate, unless *455the grantees were at the time/ upon a' critical examination, owners of the upland, it would be a snare for the grantees to induce them, in the expectation of acquiring title, to incur a great expense and become liable for the payment of rent, when the corporation of the city could at any time, without notice to them, make a new grant to a newly discovered owner for a price commensurate with the enhanced value of the lands. It would work injustice to the grantees, therefore, if the condition in it was to be construed as being *precedent*and *not subsequent*to the vesting of the estate, so thereby as to take away all opportunity for at least remonstrance against the injustice of taking away the land.

Unless, therefore, the statute of 1807 is to be construed as' not merely indicating a policy on the part of the state, but also, as also conferring indefeasible vested rights on the owners of all the upland adjoining the land directed by that statute to be conveyed, or it so far carries out such policy as to convert the corporation of New York into trustees, which would equally make such riparian rights vested, and the grant in question.whatever its language may be, is to be construed simply as a means to preserve, or at least as not interfering with such rights, the defendants are entitled to judgment in their favor. For the reasons already assigned, I can not consider either view sound or supported by any thing contained in the statute or. the grant.

I do not very clearly see how any question of adverse possession can properly arise in this case. Both parties claim title under grants from the same sources, and .that title must be confined to the legal effect of such grants. Possibly a question of the waiver or release of the condition in the grant to the corporation by the state, or by the corporation in its grant to Mrs. Clarke’s heirs, might arise by their neglect for so long a time to enforce it, while at the same time they allowed parties innocently, and in. good faith, to incur expense in making land above water under the mistaken belief that they were owners. It could hardly be the law that long after the riparian owners had lost their right to the upland by adverse *456possession, .grantees of the low land could be dispossessed by proving .that they had-not been owners of the former at the time of the grant. . .

. I thjnk, therefore, upon the grounds that the corporation of the city could .make, the grant it did to the heirs of Mrs. Clarke, subject only to be divested by° state action, and that such corporation could riot convey any rights of entry for any determination of the condition of such grant, the plaintiff was.riot..entitled to recover, and the defendants are entitled to a new trial, on the usual terms. ...

-The-judgment should ■ therefore be reversed, with costs to abide the event, and a new trial had. ‘

Bosworth, Ch. J.

The.record of the judgment in *Towle*v¡ *Farriey*was received in evidence against the objection and exception of the defendants. It was not objected to as incompetent, or- as not being the best evidence of any fact which if w!as introduced to "prove, but was objected to “as irrelevant.” ■The.jury were instructed that in determining whether Towle hadfitle..to lots Eos. 117 and .118, they must decide that question, “irrespective" of any decree or judgment in the case of *Towle*v, *:Farriey;”. ■*that the -plaintiff “ must prove his title, *in this', suit,! to.*the: ■ lots Eos.. 117 and 118, precisely as he was required- to dó iri that caseor, in other words, that the record in *Towle*v.. *Farney*was not any evidence, in this suit, and, as -against the present defendants,, of the plaintiff’s title -to.-those lots.- ;

¡That record proves the fact of the recovery of a judgment establishing‘.the plaintiff’s right to the" possession of lot Eo. 118,- in a suit' against a persori in actual possession of it. The further evidence that,'- in' execution of that judgment, the plaintiff .was" put-iri possession of this, lot on "the 25th of October, 1856, establishes the further fact that he was in actual .possession" of this lot, .by the judgment of a competent court, over three yearsbefore the making ■ of the-' water grant ■ to "him of-the date- of Eovember 29," 1859. '

The record proved the fact of recovery of possession by ;the *457plaintiff, in an action commenced in December, 1849, against the persons in actual possession of lot No. 118, and determined his right to it and his pre-emptive right to the water grant as against *them.*And the verdict of the jury in this action determines his right to it and his pre-emptive right to the water grant, as against *these defendants.*

*.*I think it was competent, for any purpose for which it can be seen it was introduced; and if it was competent for any purpose, the exception is clearly untenable.

But if, on any principle, it can be said that it was an irrelevant or immaterial fact that he recovered possession by such a judgment (which we do not concede,) then it is quite clear that the introduction of it could not possibly have prejudiced the present defendants, upon any question submitted to the jury.

The observations respecting this record, are applicable to the introduction of the record in the case of *Towle*v. *Cortlandt*Wood, and the exception taken to the admission of the latter.

The exception to the charge, in respect to the question of adverse possession by the defendants, is untenable. The charge was, that if the defendants and those under whom they claim, took possession of the premises in question under the grant made to them in 1837, “by commencing to fill up the land immediately, * * *• and have been in that possession from the 27th of February, 1840,” the defendants were entitled to a verdict.

“ But if they commenced to fill up in 1837, and *ceased*or *abandoned*the work, then that possession would not be such as the law requires .to give them title by reason of holding adverse possession.”

The point of this branch of the charge is that in respect to a possession alleged to consist of occupation, *in filling up the*premises, it ceases when the process of *filling in*ceases and the work of *filling in is abandoned'.*In this there is no error.

The words “and ceased or abandoned the work,” clearly mean a total cessation of the work, and an absolute cessation *458of that kind of occupation of the lot. of which the judge speaks in this part of his charge.

All other of the exceptions to the charge are disposed of by numerous decisions in the court of last resort, save the exception to so much of the charge as states that the grant of the premises in question, of the date of the 31st of March, 1837, to the heirs of Mary Clarke, was void, and vested no estate in them if they were not then the legal owners of the lots Nos. 117 and 118.

The grant itself declares that it is made “upon this express condition, that if at any time hereafter it shall appear that the said parties of the seeond part '(such grantees) were not at the date of these presents, . seized of a good, sure, absolute and indefeasible estate of inheritance in fee simple, of, in and to the lands and premises on the easterly side of the line of high water, and adjoining to the water lot and ground under water hereby conveyed or intended so to be, * * * then ® * * these presents, and every article, clause and thing herein contained, shall be absolutely null and void.”

They were not then, have not since then been, and are not now, the owners of the lots Nos. 117 and 118, nor had they then any interest or estate therein. But the title to them was then in this plaintiff’s grantors.

A grant of the premises in question was made to the plaintiff, as owner (he then being the owner and in actual possession) of lots 117 and 118, on the 29th of November, 1859; and if the grant to the heirs of Mary Clarke shall have no greater effect given to it than the grant itself declares shall be .given to it, then it is no obstacle to a recovery by the plaintiff in this action.

Assuming the verdict in this action to have been rendered upon competent evidence, and that all the exceptions taken by the defendants, saving the one now under consideration, are untenable, it would seem to follow that the plaintiff’s right to recover the premises in question is as perfect and absolute (looting only to the substantial rights of the parties) as it would be if the grant to the heirs of Mary Clarke did *459not embrace the premises subsequently granted to the plaintiff by the grant of November 29, 1859.

The' corporation, in making grant of land under water, covering and contiguous to the premises in question, conveyed by lines running easterly and westerly parallel, with 25th and 26th streets. This is true of all the grants given in evidence. The corporation may properly so' grant, and the owners of the upland can not object thereto. • *(Nott*v. Thayer, 2 *Bosw.*10.)

It may be true that the corporation is the owner of the land between 25th and 26th streets, on the Hudson river, between high and low water mark, and as such, might have given title thereto to any one purchasing prior to the act of February 25th, 1826, and perhaps subsequently thereto, *(Furman*v. *The Mayor, &c.*5 *Sandf.*16 ; *S. C.*6 *Seld.*567;) and yet it will not follow that the owners of the *upland*are not absolutely entitled to a pre-emptive right to a grant of the land under water to which that act relates, to the exclusion of the corporation or of its grantee of the land between high and low water mark, where such a grant had been or is about to be made.

That statute directs the commissioners of the land office to issue letters patent granting to the mayor, &c. the lands under water, “ at and from low water mark,- and running four hundred feet into ‘the said river” (the Hudson river) “from a point on the easterly shore of said river, four miles north from Bestaver’s Killetje, * * * to Spuyten Duyvel’s Creek,” *(Davies’ Laws of New York,*675, 676,) and impresses upon, and subjects the letters patent and the grant thereby, to the provision, “that the proprietor or proprietors of the lands adjacent, shall have the pre-emptive right, in all grants made by the corporation of the said city, of any lands *under water,*granted to the said corporation by this act.”

It is the obvious purpose of this statute, to secure to owners of the upland, to the exclusion of the corporation as owner of the space between high and low water mark, a pre-emption right to the lands under water to which that act relates, in the event of the corporation making grants of the same.

*460The act of April 3, 1807, *(Davies’ Laws of New*York, 434, § 15,) impresses the same condition and right upon all the lands. under 'water to which that act' relates, and that covers the space between Bestaver’s Killetje and a point four miles north thereof, and between low water mark and a line extending four huudred feet into the Hudson river.

The act of April 12, 1837, *(Davies’*Laws, 799,) vests in the mayor, &c. of Hew York, title to the lands in the Hudson river, between Hammond and 135th streets, extending westerly from the line of the former grants, to the westerly side of 13th avenue, as regulated by that act. That act gives to the proprietors of grants theretofore made by the corporation, of lands within the four hundred feet, the pre-emptive right in all grants, of any lands , under water, granted to the corporation by the act of April 12, 1837, “ adjacent to and in front of the lands under water so heretofore granted;” and it also secures to “the proprietors of lands having a pre-emptive right to grants of lands under water by virtue of the said act,” (of February 25, 1826,) “ the same pre-emptive right in all grants made by the said mayor, aldermen and commonalty of the .city of Hew York, of any lands under water granted to them by this act,” (viz. the act of April 12, 1837.)

The obvious meaning of these statutes is, that all the lands under water embraced within the grants authorized by them, shall be granted (if any grants be made thereof) to' the proprietor or proprietors of the land adjacent; that is, to the proprietors of the adjacent uplands, and not be vested indefensibly in the corporation as owners of the land between high and low water mark where it had made no conveyance of the same, or in its grantees of such tide way where it had granted the same to persons not proprietors of the adjacent uplands, if any such grants had been made.

It could not have been the intent, nor is it an equitable or necessary construction of the act of April 12, 1837, to require a graht of the land under water conveyed by this act to any person who might, by misrepresentation in regard to his title to adjacent upland, or by reason of the mistake 'of the cor*461poration in that behalf, have obtained, prior to April 12,1837, a grant of land under water to the outer line of the four hundred feet first granted.

The phrase, “ the proprietor or proprietors of the adjacent lands,” is found in the act of May 5th, 1786, (1 *Laws of New York, Greenl. ed.*284, § 18,) and in the act of April 6, 1813, (1 *R. S.*293, § 14.) While in 1 *R. S.*208, § 77, sec. 67, the more brief expression, “the proprietor of the adjacent lands,” is employed. In all of these statutes, and in those of April 3, 1807; February 25, 1826, and April 12, 1837, which use the words, “ the proprietor or proprietors of the land adjacent,” the *proprietors*spoken of are the persons owning the upland adjacent.

The Revised Statutes (1 R. *S.*208, *supra,)*not only prohibit the making of a grant “to any person other than the proprietor of the adjacent lands,” but declares that every such grant that shall he made to any other person shall be void. This provision of the Revised Statutes was, perhaps, enacted to save the necessity of bringing a *scire facias,*or proceedings by bill in chancery, or by information, where a second patentee found that by mistake or misrepresentation a prior patent had been issued to one not entitled to it, in order to procure it to be vacated. *(Jackson*v. *Lawton,*10 *John.*23. *Jackson*v. *Hart,*12 *id.*77.)

The decisions in these two cases proceed on the principle that letters patent are matters of record, and can not be impeached collaterally. The courts say that “unless letters patent are absolutely void on the face of them, _ or the issuing of them was without authority, or was prohibited by statute, they can only be avoided in a regular course of pleading, in which the fraud, irregularity or mistake is directly put in issue.” *Jackson*v. *Lawton,*(10 *John.*26 ;) *The People, &c.*v. *Mauran,*(5 *Denio,*389 ;) *Williams*v. *Sheldon,*(10 *Wend.*654,) *and Jackson*v. *Marsh,*(6 *Cowen,*281,) were decided on that principle.

The water grants made by the corporation of the city of New York, are not “matters of record” in'any such sense as *462letters patent, issued by the state are. The grant- containing the condition in question, is by an ordinary deed of conveyance. .

The object of the declaration in the water grant, that “these presents and the estate hereby granted, are upon this express condition,” ® ® ® ® ■ that “these presents and every article, clause and thing herein contained shall be absolutely null and .void,” if it shall at any time appear that the grantees were not the proprietors of the adjoining land on the easterly line of high water mark,” was probably the same as that of the clause of the Revised Statutes, which declares that a patent issued to a person not entitled to it, shall be void.

The object and design were, that the actual owner of the adjacent land who had obtained a second water grant, might, in the suit in which he established his title to the adjacent upland, and consequently to such a grant, recover from a prior grantee of the land under water, whose grant, by its own terms, was absolutely void, without instituting a suit for the single and sole purpose of avoiding such prior- grant.'

Ho cases have been cited which require the court to- give to the water grant made to the heirs of Mary Clarke any force and effect; as the grant itself declares, that on the facts appearing which are established on this trial, it shall be absolutely null and void.

I conclude, therefore, that if there be no obstacle to the plaintiff’s recovery except the fact of this prior grant, the judgment should be affirmed.

The fact that the water grant also declares that it shall be null and void, for the further cause that the grantees make default in the performance of any of the covenants on their part therein contained, and the parties of the first part may forthwith /enter upon the premises,5' and shall thereafter be seised of the same, discharged of any claim of the grantees, does not militate against this view.

It would be just, and but a proper precaution, to provide for the.right of re-entry in case of a failure .by them to perform their covenants.

*463The corporation thereby resumed the power, in case the grantees had, by mistake, obtained a grant, when the right to it was in? others, to repossess itself of the granted property, and thus be in a condition to perform its duty to the owner of the adjacent upland, and prevent his right being barred by adverse possession, if perchance it could be thus barred.

It is only, on the ground that the heirs of Mary "Clarke were supposed to be “ seised of a good, sure, absolute and indefeasible estate of inheritance in fee simple of, in, and to the lands and premises on the *easterly*line- of *high water*and adjoining to the water lot and ground under water,” conveyed by the grant of - the 31st of March, 1837, that such grant was made. It declared that it was .made and granted upon the express condition that it should “be absolutely null and void” if it should appear'that they were not so seised.

Instead of their being so seised, the plaintiff’s grantors had such title. The plaintiff was litigating the question of title to the. adjacent uplands from December, 1849, to the 25th of October,. 1856, with the tenants of the heirs of Mary Clarke, who were in actual possession; and "having established his title, as against them, a water grant of land under water, parallel with 25th street, and of even width with his adjacent upland, was made to him on the 29th of November, 1859.

He had done nothing to waive or forfeit his pre-emptive right to such grant. At all events, there is no evidence tending to show that such is the fact.

The premises in question are part of the land under water, conveyed by said grant.

His pre-emptive right is absolute, ■ He is the proprietor of the adjacent upland, and as such proprietor has a water grant of the premises in question, and there is no obstacle to his recovery in this suit except the prior grant to 'the heirs of Mary Clarke, and *that,*by its own terms, is declared to be absolutely null and void on the fact appearing which has been established on this trial.

This pre-emptive right is so definite and absolute, that *464courts will protect it. *(Armour*v. *Alexander,*10 *Paige,*571. *Furman*v. *The Mayor, &c.*5 *Sandf.*16.)

The remarks of the court in *Lytle*v. *The State of Arkansas,*(9 *How. S. Ct.*314,) in relation to the character and quality of the pre-emptive right asserted in that case, are equally pertinent to the pre-emptive right in question. The court say: “ The" claim of a pre-emption is. not that shadowy right which, hy some, it is considered to he. Until sanctioned by law, it has no existence as a substantive right. But when conveyed by the *law,*it becomes a *legal right,*subject to be defeated only by a failure to perform the conditions annexed to it.” The considerations, of public policy which led to the-creation of the pre-emptive rights there under consideration, are not the same as those which led. to ■ securing in the case before us, by .positive'statute, “the pre-emptive right in all grants made by the corporation of the said city, (Hew York,) of any lands under water, granted to the said corporation by this act,” (the act of February 25th, 1826,) to “ the proprietor or proprietors of the lands adjacent.”' But the latter act is founded in obvious considerations of public justice and the equities of the individuals owning the lands adjacent.

•The words of the statute declaring and perfecting these rights, are as clear and peremptory as can well be selected.

It was not intended that the corporation should have, the power and authority, if it' made grants of these lands, to make them to any one except the proprietors of the lands adjacent, unless the latter did some' act or were guilty of some omission which would defeat the pre-emptive right thus declared.

And every person taking a grant, either as original grantee or assignee, takes it with notice of the right of the true proprietor of the lands adjacent. *(Brush*v. *Ware,*15 *Pet. S. Ct.*93.)

These views will aid in properly determining the question, whether the *condition in*question contained in the' grant, of the 31st of March, 1837, shall be deemed a condition precedent or subsequent.

There are many cogent considerations why the condition in *465question should be treated as a' condition precedent, and not as a condition subsequent, with all the consequences attaching to the application of the technical rules of that branch of the law, to this case.

*First.*It is held, and acted on as a basis of judicial decision, that there are no technical words by which a condition precedent can be distinguished from, a condition subsequent. That whether it be the one or the other is a matter of construction, and depends upon the *intention, of the party creating the estate. (Nicoll*v. *New York and Erie R. R. Co.,*12 *N. Y. Rep.*121.) That conditions subsequent are not favored in the law, and can only be reserved for the benefit of the *grantor*and his heirs, and no other can take advantage of a breach of them. *(Id.*131.) That where a fee simple, without a reservation of rents, is granted upon a condition subsequent, there is no estate remaining in the grantor; there is simply a possibility of reverter. That this is not an estate, but a bare possibility, which will not in equity even give an assignee of it a right to the interposition of a court of equity, to divest an estate for the breach of a condition subsequent. *(Id.*132.)

*Second.*The corporation had not capacity to grant, lawfully, in fee simple, absolute, the premises in question, to any persons except the owners of the adjacent upland, unless they had done some act to waive or dispose of their pre-emptive right to the grant. If about to make a grant to persons not entitled, the corporation would be restrained by injunction, at the suit of those having the pre-emptive right, provided the latter offered to take a grant on terms as favorable to the corporation. So, too, if the corporation should make a grant to persons not entitled, a suit might be brought by those entitled, against the grantees and such corporation, to avoid the grant, and compel a grant to the plaintiffs. The reasoning óf the court in *Furman*v. *The Mayor, &c.*(5 *Sandf.*16,) and *Armour*v. *Alexander,*(10 *Paige,*571,) fully supports these views.

The corporation was not, therefore, the owner of the prem*466ises granted, in fee simple, absolute. They held them in trust, in such sense that, if they determined to grant them, the owners of the adjacent uplands would be entitled to the grant if they desired it, and would take it on terms as favorable to the corporation as others would.

Hot being owners in fee simple absolute, they and their successors are not alone interested in the condition in question, nor are they the only persons, or in fact the persons who should be deemed to have been designed to be protected by it.

*Third.*Hot being a condition which can be deemed to have been inserted as a reservation for the benefit of the “ grantor and his heirs,” alone or primarily, the plaintiff and his grantors of the adjacent upland, are not to be regarded as strangers, having no interest except that of a possibility of reverter. They had a pre-emptive right to the grant, which was a perfect, legal right, and have done nothing, nor omitted to do any thing, to waive or forfeit that right. *

*Fourth.*By 1 *R. S.*747, § 23, the assignees of the lessor of any demise, have the same remedy “by entry, action, distress or otherwise, for non-performance of any agreement contained in the lease so assigned, * * * or for the doing of any waste or other cause of forfeiture as their grantor or lessor had or might have had, if such reversion had remained in such lessor or grantor.” And by section 25 *(Id.)*the provision of that section extends “ as well to grants or leases *in fee reserving*rents, as to leases for life and for years.”

The water grant to the defendant’s grantors, of the 31st of March, 1837, should be construed in view of the position of the corporation to the premises in question, of its duty to owners of the adjacent upland, and of the right of the latter.

The grant, before reaching the condition in question, provides that in case of failure to pay the yearly rents reserved, for the space of thirty days after any rent becomes due, the corporation may re-enter, &e. Hext following this provision af.e other covenants, occupying some eight folios, and then come these clauses, viz: “ And it is hereby further covenanted and agreed, by and between the parties to these presents, *467and. the true intent and. meaning is hereby declared to be that, *this present grant*shall not be *deemed, construed or taken** * * to *operate further*than to pass the estate, right, title or interest *they have*or may *lawfully*claim by virtue of then- *several charters*and the *variovs acts of the legislature of the people of the state of New York;*and it is further expressly understood and agreed, and *these presents*and *estate*hereby granted, are upon *this express condition,*that if at any time hereafter it shall appear that the said parties of the second part, *were not,*at the *date of these presents,*seised of a good, sure, absolute and indefeasible estate of inheritance, in fee simple of, in and to the lands and premises on the *easterly side of the line of high water*mark and adjoining to the -water lot and ground under water hereby conveyed, * * then * * these presents, and every article, clause and thing herein contained, *shall be absolutely null and void”*

These provisions indicate a clear intent not to make any grant which could in any way interfere with the pre-emptive right of the true owner of the adjacent upland to a water grant. It is a clear declaration of an intent not to transfer, or to be deemed to have attempted to transfer any *estate*in the premises purporting to be conveyed, unless the grantees were at that time absolute owners, in fee simple, of the adjacent upland.

All the covenants in this grant, on the part of the grantees, were no more or less valuable to the corporation, whether the *grantees were or were not such owners.*And that condition was manifestly inserted, not for the benefit of the corporation, the grantor, but for the benefit of the actual owners of the adjacent upland, and that the grant might not be an obstacle to making an operative, valid grant to such true owners, whenever it appeared that the grantees were not the true owners. • / ...

In any other view it is puerile. The corporation had no pecuniary or proprietary interest to be protected by it. But it owed a duty to the true owner of the adjacent upland, who*468ever he might be, and that duty it designed to perform faithfully.

Treated as a condition subsequent, there is no act or duty devolved upon or stipulated for by the grantees, the *non-performance or non-observance*of which is to be a cause of forfeiture.

There is no event to happen in futuro, the happening of which-is to-be a cause of forfeiture.

- The good sense of the condition is, that if the grantees do not then pwn -the adjacent upland, they take no *estate;*and whenever it appears they were not the owners, the corporation is at; liberty to say that the water grant, the instrument itself, and all its provisions, were “absolutely null and void” from itsdate. =.

It-did appear satisfactorily to the corporation on the -27th of October, 1859, and such was the actual fact,, that the heirs of Mary Clarke were not the owners of the adjacent upland, and that this plaintiff was ;- and in a water grant of that date, the'corporation granted the premises to the' plaintiff, as the person entitled to such grant, and the grant recites these facts.

If the -intent of the *grantors,*as clearly manifested by the grant: itself, is to determine whether the condition is to be treated as *precedent*or *subsequent,*then it should be held a condition precedent.

It is a condition which they could not lawfully discharge and release.

The conclusion is not weakened by the fact that the grant also declares that if the grantees make default in any of their covenants, .the same consequences shall follow, and that the grantors and their successors may re-enter.

- That provision is an apt and proper one to meet the case of a default on the part of the grantees to perform their covenants, and has full force in being applied to such a case. It would violate the clear intent, otherwise expressed, to hold that a re-entry or its statutory substitute, was designed to be the only remedy left to the corporation or the owners of the *469adjacent upland in case it was ascertained to be true in fact that the grantees did not own the adjacent upland.

Nor does this view interpose any difficulties in the way of the corporation, in extending the exterior lines of the city, and building new streets, piers, or bulkheads.

It can cut off the pre-emptive right of any adjacent upland owner, by giving notice of an intent to make water grants and inviting bidders. If he declines to take a grant on the condition that no estate passes if he be not the owner of the adjacent upland, and obtains one on such terms, he has no ground of complaint legal or equitable, because he has run the risk of making large outlays on the premises. It is a matter of judicial history that for more than forty years there has been a succession of suits between the devisees of Mary Clarke and purchasers claiming title under acts of the legislature of this state, and proceedings thereunder, in respect to the title of lots belonging to the estate, which is the upland adjacent to the premises in question. *(Sinclair*v. *Jackson,*8 *Cowen,*543. *Cochran*v. *Van Surlay,*20 *Wend. 365. Towle*v. *Forney,*14 *N. Y. Rep.*423. *Williamson*v. *Berry,*8 *How. S. Ct.*495. *Williamson*v. *Suydam,*24 *id.*427.)

So far as the reported cases speak on the subject, the devisees of Mary Clarke and those to whose rights the grantees in the grant of the 31st of March, 1837, have succeeded, had been defeated. I do not on this account, question the good faith of such grantees in applying for and obtaining that grant. Their good faith does not enter into the controversy.

But matters as notorious as it may be presumed the fact and result of-these litigations were, from the history of them found in the reports of the different courts, might properly predispose the corporation, in making the grant in question, to declare in it a clear intent, and insert in it a condition, that no estate should be transferred if the grantees were not at the date of the grant the owners of the upland.

I think the condition in question was inserted to declare and effectuate such an intent, and that this is apparent from the grant itself.

*470The grantees by virtue of their grant obtained a license to enter and enjoy the premises unmolested by the corporation, so long as they should perform the covenants on their part, and no one appeared claiming to be the true owner of the adjacent upland.

When such a claimant appeared, and was what he claimed to be, the corporation had the right and it was its duty to make a grant to him.

And where, in a suit properly brought by him to recover possession, he establishes his ownership of the adjacent upland, the grant in question should not be held to be an obstacle to a recovery. The defendants are not in a position to claim that the grant to the heirs of Mary Clarke vested any title to the premises in question, in the grantees named in it. .

Such a construction is adapted to subserve the ends of justice, and accords with the intent of the grantor in inserting the condition in question, as manifested by the grant itself, and all surrounding facts to which its recitals clearly point.

If the defendants had any equities based on the *good faith*and acts of the grantees in the grant of March 31, 1837, they could have been alleged and protected in this action. *(Phillips*v. *Gorham,*17 *N. Y.*Rep. 270.)

The complaint in this action, in its third article, alleges that the defendants pretend to claim some right to the premises in question, that this claim is unlawful, and that the defendants’ claim to the lot, and the possession thereof, are fraudulent and void as against the plaintiff.

Without requiring any allegations of the complaint to be made more definite and certain, as provided by section 160 of the Code, the parties have tried the cause upon its whole merits, without any objection thereto that I have discovered, and unless the plaintiff must bring two suits instead of one, and try them separately, it would seem that his right to the premises in question has been fully established, and the judgment rendered should not be disturbed.

I have already considered the exceptions to that part of the charge relating to the question of adverse possession. In *471doing so, no doubt was suggested whether the case raised any such question for the consideration of the jury.

I thinlr it by no means clear that any such question can be raised in this case, and if it. can not be, the charge in that behalf is immaterial, as the plaintiff recovered on proof of his title to the upland, and of his pre-emptive right to the water grant which has been executed to him.

By the terms of the grant in question, the grantees agreed that if they were not at its date the owners of the adjacent upland in fee simple absolute, the grant should be absolutely null and void. They entered under a grant containing‘such an agreement on their part. Their possession has been qualified by it, and subordinated to it.

It is not adverse to the corporátion in respect to the question of the title to the premises granted. Their possession has been under the grant, with no claim of title' which is not qualified by these provisions.

The defendants and their grantors have occupied under a grant which declares, and in which they agree that their occupation shall be deemed to be without title or right to claim any title, if the grantees were not, at the date of the grant, the owners of the adjacent upland. They were not such owners. Their occupation, therefore, has not been hostile or adverse either to the city corporation or their *quasi cestuis que trust,*the actual owners of the adjacent upland.

Where it appears that the title claimed is subservient to, and admits the existence of a higher title, the possession is not adverse. *(Jackson*v. *Johnson, 5 Cowen,*74.) The claim of title on the part of the defendants and their grantors, is under and according to the grant. By the very terms of the grant, and the agreement in it qualifying the defendants’ possession, the corporation might re-enter- after the lapse of thirty years, as well as at the ehd of ten years, on its appearing, or proof being made, that the grantees in the grant of March 31, 1837, had no title then to the adjacent upland.

It is impossible that the possession can be deemed to be adverse, in its commencement, to the corporation, in such sense *472that twenty years’ continuance of it would defeat this condition of the grant and convert the defendants’ title into a fee. A .possession, to he adverse, must be accompanied with a claim of *the entire title,*free form all *conditions*and limitations, *(Jackson*v. *Hill, 5 Wend. 532. Livingston*v. *Peru Iron Co.,*9 *id.*511. *Thompson*v. *The Mayor, &c.*11 *N. Y. Rep.*115. *Hoyt*v. *Dillon,*19 *Barb.*644. *Butler*v. *Phelps,*17 *Wend.*642. *Burhans*v. *Van Zandt,*7 *N, Y. Rep.*523.)

If the condition in question was clearly intended by the grantor as a condition precedent, and if this is manifest from the terms of the grant and notorious surrounding circumstances, then it follows that the defendants took possession, and have at all times occupied under an agreement that they should not be deemed to have acquired or have any title, if they did not own the upland. They did not then own, and have not since then owned the adjacent upland. I think, therefore, that their possession can not be treated as *adverse,*within the rules applicable to that subject.

If these views are correct, the judgment should be affirmed. If they are . untenable, it will follow that these pre-emptive rights, specially protected as they are by statute, and notwithstanding the apparent effort of the corporation to do nothing to prejudice or affect them, are destitute of substance, and can. not be. enjoyed as a matter of right by those to whom the law declares they belong.

I think the judgment should be affirmed.

Judgment reversed, with costs to abide the event, and a new trial ordered.