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ject only to the liability to escheat, the entire and absolute property is vested in the owners, according to the nature of their respective estates.

(Const. 1846, art. 1, $ 13.)

This subject is considered in connection with the work of the Convention of 1846. The rights of riparian owners along the Hudson river are considered in Gould v. Hudson River R. Co. (1852) 6 N. Y. 522, and in Kerr v. West Shore R. Co. (1891) 127 N. Y. 269, 27 N. E. 833.

In People ex rel. Howell v. Jessup (1899) 160 N. Y. 256, 54 N. E. 682, the court had occasion to determine the title acquired by the town of South Hampton under the Andros and Dongan charters, and also the right of a riparian owner on Great South bay.

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§ 13. (Leases of agricultural lands limited.] lease or grant of agricultural land, for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid.

(Const. 1846, art. 1, § 14.)

The history of this section will be found in the second volume, in connection with the work of the Convention of 1846.

In Stephens v. Reynolds (1852) 6 N. Y. 454, the court, after a brief statement of the reasons which prompted the Convention of 1846 to include this section in the Constitution, say that the “leases or grants of land prohibited by the Constitution were such as were held by the tenants upon a reservation of an annual or periodical rent or service, to be paid as a compensation for the use of the lands, in contradistinction from a consideration paid for the estate granted. It is still competent to make a grant for life or lives upon a given consideration to be paid for the estate. This consideration may be payable all at once, or by instalments, or in services, so that it be not by way of rent. By the Constitution there must be a reservation of rent or service. A reservation is defined to be a keeping aside, or providing, as where a man lets or parts with his land but reserves or provides himself a rent out of it for his own livelihood.” It was held that a lease which contained a covenant by

the lessor to devise the land to the lessee's wise, a daughter of the lessor, in consideration of which the lessee agreed to furnish the lessor with comfortable support during her life, was not within the constitutional prohibition.

A similar lease was construed with the same result in Parsell v. Stryker (1869) 41 N. Y. 480.

A lease for twelve years, with a continuing covenant to renew at the end of each period of twelve years, was held good as to the first twelve, but void as to the covenant for renewal, the court observing that such a covenant was against the spirit and policy of the constitutional provision. Hart v. Hart (1856) 22 Barb. 606.

In Rutherford v. Graham (1875) 4 Hun, 796, a peculiar contract was held to be a sale of a right of dower, and not a lease within the meaning of the Constitution.

A lease for a longer period than twelve years would not be valid for that period, but the lease itself would be void in toto. An agreement including two leases executed at the same time, one for eight years, and one for a further period of twelve years, making twenty years in all, was declared invalid, the court observing that “otherwise the whole policy of the constitutional provision could be defeated by cutting a very long term up into successive short terms by the use of separate instruments all executed at the same time.” Clark v. Barnes (1879) 76 N. Y. 301, 32 Am. Rep. 306. * “The character of the land is made, by the Constitution, the test of the validity of the lease, not the purpose for which the lease was made."

Accordingly, a lease of agricultural land for the purpose of taking iron ore therefrom, but reserving to the lessor the use of a part of the land for any other purpose, was held invalid. The lessee had the right to use a part of the land for agricultural purposes in addition to its use for mining iron ore. Odell v. Durant, (1875) 62 N. Y. 524.

The same subject was considered in Massachusetts Nat. Bank v. Shinn (1900) 163 N. Y. 360, 57 N. E. 611, construing a lease for the exclusive purpose of mining iron ore, and a lease of twenty years was sustained. The court say that “the purpose is no test of validity, for the lease, whatever its purpose, if it covers agricultural lands, must exclude that use, or it will be void, provided the term exceeds twelve years."

In Witherbee v. Stower (1880) 23 Hun, 27, a similar question was presented involving the construction of a lease for fifty years of 4 acres of land, to be ysed for the manufacture of coal, and which land was said to be worthless and unfit for any other purpose.

A life lease reserving an annual money rent is valid. It is necessarily for an indefinite period, and may terminate before the expiration of the constitutional limit, but its continuance beyond that time does not make it void. Life estates are not destroyed by this constitutional provision. The term "longer period” should be construed as meaning a definite period, and as not applicable to an estate whose duration is wholly indefinite and uncertain. Parish v. Rogers (1897) 20 App. Div. 279, 46 N. Y. Supp. 1058.


§ 14. (Restraints on alienation prohibited. )-All fines, quarter-sales, or other like restraints upon alienation, served in any grant of land hereafter to be made, shall be void.

(Const. 1846, art. 1, $ 15.)

An interesting history of this section and the construction of a lease including a provision for quarter-sales may be found in De Peyster v. Michael (1852) 6 N. Y. 467, 57 Am. Dec. 470, which has been cited in a former part of this work in connection with the subject of tenures.

A covenant in a deed, the fee remaining in the grantor, that the grantee should pay to the grantor a specified sum on the sale of prescribed parcels, is not a restriction on alienation. Bennet v. Washington Cemetery (1890) 24 Abb. N. C. 459, 11 N. Y. Supp. 203, citing Bennett v. Culver (1884) 97 N. Y. 250, where the same deed was construed by the court of appeals.

$ 15. (Indian lands. ]—No purchase or contract for the sale of lands in this state, made since the fourteenth day of October, one thousand seven hundred and seventyfive, or which may hereafter be made, of or with the Indians, shall be valid, unless made under the authority and with the consent of the legislature.

(Const. 1777, art. 37; 1821, art. 7, 8 12; 1846, art. 1, $ 16.)

The Jay amendment. —This section has been continued from the Constitution of 1821 without change. The sub

ject was included in the Constitution of 1777, but was not in the original draft of that instrument as presented to the Convention. In the chapter on the work of the first Convention it appears that, while the Constitution was under consideration, John Jay presented a section relating to Indian land, which, with some modifications, became $ 37 of the Constitution of 1777, and the basis of the present provision. The subsequent acquisition of nearly all the land then held by the Indians has rendered this provision almost obsolete; but until the Indian title to the remaining reservations shall be extinguished by allotment or otherwise, the restriction imposed by the section will possess all its original force, though in a reduced and diminishing degree. Following the custom of stating in a preamble the reasons for constitutional or legislative action, Mr. Jay prefixed to his proposed section a statement reciting that “the right of preëmption to all Indian lands within this state appertains to the good people thereof,” that "it is of great importance to the safety of this state that peace and amity with the Indians within the same be at all times supported and maintained,” and that "the frauds too often practised towards the said Indians in contracts for their lands have, in divers instances, been productive of dangerous discontents and animosities.” In disposing of this section the Convention omitted the first clause in the preamble, which asserted the right of preëmption to Indian lands by the people of the state, but retained the remainder. The section incorporated in the Constitution the policy regarding Indian land which had prevailed scarcely without interruption during the entire colonial period, and the importance of the original provision is manifest from the fact that when the first Constitution was adopted the Indians were in possession and control of a large part of the state.

Dutch policy.—The Dutch adopted at the beginning the policy of purchasing Indian lands. Thus, Peter Schagen, in a letter to the States General, dated November 5, 1626, says that the colonists had purchased Manhattan Island for sixty guilders ($24). This policy was expressed in the first “Freedoms and Exemptions," 1629, in the provision that whosoever shall settle elsewhere than on Manhattan Island, which had already been purchased, “shall be obliged to satisfy the Indians for the land they shall settle upon." The patent to Kiliaen Van Rensselaer, bearing date August 13, 1630, of the tract afterwards embracing the county of Rensselaer and parts of the counties of Albany and Columbia, recited the purchase thereof from certain Indians. In the preliminary article on agricultural leases in the chapter on the Convention of 1846 I have given a sketch of the history of the Manor of Rensselaerwyck, and the influence of the land policy there established in producing the constitutional provision limiting such leases to twelve years. The requirement in the first Freedoms and Exemptions that land must be purchased from the Indians was repeated in the Freedoms and Exemptions of 1650, in the provision that the settlers must satisfy the natives for the soil.

The Dutch expressly recognized the Indian title, and sought to extinguish it by treaty or purchase. The Assembly of XIX., in a communication to the States General, under date of October 25, 1634, say that the Dutch West India Company purchased Manhattan Island of the Indians, "who were the indubitable owners thereof," and “there laid the foundation of a city,” and also established colonies elsewhere, "for which purpose were also purchased from the chiefs of the Indians the lands and the soil, with their respective attributes and jurisdictions."

The feudal system, established in a modified form by,

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