Countryman v. Deck
New York Supreme Court
Trial of the case. The plaintiff, David F. Countryman and his wife, Emma J., brought this action for a specific performance of an alleged covenant to maintain a fence.
Read the full summary
Trial of the case. The plaintiff, David F. Countryman and his wife, Emma J., brought this action for a specific performance of an alleged covenant to maintain a fence. It appeared, that on April 1, 1875, Simpson, owning a farm, conveyed a lot of land out of it to one Woodward, by warranty deed, which contained, after the description of the land, the following words :—“ Provided always that the party of the second part shall fence and keep fenced the premises above described.” Woodward entered upon the lot, and fenced it. He afterwards conveyed to defendant. Simpson died, and his daughter,…
1Opinion of the CourtBumsey, J.
The first question presented is whether the clause of the deed upon which this action is based shall be construed as a covenant or as a condition.
The words “upon condition” or “provided” are the usual technical words to create a condition, but it cannot be said that they are necessarily to be construed as having that effect. The question in each case is to be decided upon consideration of the who,e instrument, having in view the intention of the par tie:; to it (1 Lead. Cas. on Real Prop. 123, 124).
Even the word “ provided,” which is said to be apt to make a condition, frequently expresses a…
2Cases cited20 opinions
- Trustees of Watertown v. Cowen & BaggNew York Court of Chancery · 1834
- Stanley v. ColtSupreme Court of the United States · 1867
- Bronson v. CoffinMassachusetts Supreme Judicial Court · 1871
- Atlantic Dock Co. v. . LeavittNew York Court of Appeals · 1873
- Jeffries v. JeffriesMassachusetts Supreme Judicial Court · 1875
15 more not listed; retrieve them via the Exa API.
3Cited by4 opinions
- Greenfarb v. R. S. K. Realty Corp.New York Court of Appeals · 1931
- Avery v. N. Y. C. & H. R. RailroadNew York Court of Appeals · 1887
- Avery v. New York Central & Hudson River RailroadNew York Court of Appeals · 1887
- Dey v. PrentissNew York Supreme Court · 1895