§ 72. Release of rents reserved by leases in perpetuity. 1. Any person interested in lands held under a lease in perpetuity, upon which no rent has been paid for at least twenty years, may present his petition to the courts mentioned in this section asking that it be declared that the rents and reversion have been released to the owner of the fee. Such petition shall be verified, shall describe the lease and allege that the rents and reversion have been released, and shall state such facts as the petitioner can ascertain relative to the execution of a release and the identity of the persons who would otherwise be the present owners of the rents and reversion and the last known owner thereof. 2. Such petition may be presented to the supreme court or to the county court of the county where the lands are situated. The court may thereupon order all persons interested to show cause at a certain time and place why the rents and reversion should not be declared to have been released. A description of the lease and lands affected thereby and the name of the last known owner of the rents and reversion shall be specified in such order, and the order shall be published in such newspaper or newspapers and for such time as the court shall direct. The court may also direct the order to be personally served upon such persons as it shall designate. 3. The court may issue commissions to take the testimony of witnesses and may refer it to a referee to take and report proofs of the facts stated in the petition. Upon being satisfied that the matters alleged in the petition are true, the court may make an order declaring that the rents and reversion have been released to the owner of the fee. The nonpayment of rent under any such lease for twenty years shall be presumptive evidence of such a release. The entry of such order in the office of the clerk of the county where such lands are situated shall have the same effect as a release of such rents and reversion to such owner then duly executed and recorded. The county clerk shall note on the margin of the record of the original lease a minute of the entry of such order. Formerly chapter 227, Laws of 1900:25 Comment. This section, which is taken literally and without change from chapter 227, Laws of 1900, was added to the Real Property Law by the Board of Statutory Consolidation and is therefore only new as regards the particular situation which it now occupies in the Real Property Law.26 It will be observed that this section refers to the old fees farm which were discussed very fully under section 31 of this act.27 This act is evidently in the interest of the tenants of the old " fees farm," and to clear the titles to lands which were originally conveyed in fee subject to a perpetual rent. The act does not mention services other than rent, and presumably lands subject to a reservation of service of any kind other than rent are unaffected by this section. End of Article 3. Section 72 at the end of the one hundred and thirty-second session of the Legislature (1909) now ends article 3 of the Real Property Law. 25 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 26 See p. 200, supra. 27 Supra, pp. 190-200. ARTICLE 4.28 Uses and Trusts. Section 90. Executed uses existing. 91. Certain uses and trusts abolished. 92. When right to possession creates legal ownership. 93. Trustee of passive trust not to take. 94. Grant to one where consideration paid by another. 28 This article on Uses and Trusts is simply a redaction of the earlier article in the Revised Statutes on the same subject. It must always be remembered that when the Revised Statutes were first enacted the old systems of law and equity were in full force. The history of Uses and Trusts is a part of the history of equity jurisdiction in England and in the Crown-province of New York. From the inception of the government of New York by the English, the equity powers of the Lord Chancellor were lodged in a delegate, either the Governor of the Province, or a local Chancellor, and from the year 1683 the distinctions observed in England between the forums of law and equity were fully established in New York. The local Chancellor had jurisdiction over trusts, but uses executed into legal estates by the Statute of Uses (always in force in New York as part of the socage tenure) were cognizable in the common-law courts of the province. The present writer has traced the jurisdiction of the courts of equity and law in the province of New York so frequently that he may be pardoned for referring the reader to his own fuller citations of authorities, as it avoids the necessity of unnecessary repetition of matters, less and less frequently consulted. (See chapters VI and VII History of the Law of Real Property in New York; notes to the Grolier edition of Bradford's Laws of New York in 1694, and particularly the citations of authorities.) It was through the machinery of the judicial establishment of the province of New York that the distinctions between legal and equitable estates, and between uses and trusts, distinctions familiar to the law of England in the last two centuries, were established and perpetuated in New York. When the State Constitution of 1846 was established and the courts of law and equity consolidated and the practice in both assimilated, the distinction between uses and trusts had become so ineradicable in the law of New York as to survive even these reforms. (Gould v. Cayuga County Bank, 86 N. Y. 75, 83; Peters v. Delaplaine, 49 id. 362, 370; Chipman v. Montgomery, 63 id. 221, 230; Town of Mentz v. Cook, 108 id. 504; Corscadden v. Haswell, 88 App. Div. 158; Gilbert v. Brunell, 92 id. 284; Fox v. Fitzpatrick, 190 N. Y. 259, 267.) The strength of this survival was, no doubt, partly due to the statutory revision of the law of Uses and Trusts in the Revised Statutes. Section 95. Bona fide purchasers protected. 96. Purposes for which express trusts may be created. 98. Surplus income of trust property liable to creditors. 100. Trustee of express trust to have whole estate. IOI. Qualification of last section. 102. Interest remaining in grantor of express trust. 103. What trust interest may be alienated. 104. Transferee of trust property protected. 105. When trustee may convey or exchange trust property. 106. When trustee may lease trust property. 107. Notice to beneficiary and other persons interested where real property affected by a trust is conveyed, mortgaged or leased, and procedure thereupon. 108. Person paying money to trustee protected. 109. When estate of trustee ceases. 110. Termination of trusts for the benefit of creditors. III. Trust estate not to descend. 112. Resignation or removal of trustee and appointment of suc cessor. 113. Grants and devises of real property for charitable purposes. 114. Certain educational and other charitable uses authorized. 114a. Trusts for care of cemetery lots, etc. 115. Certain grants for charitable uses regulated. 116. Executors'. fiduciaries' and trustees' investments in certain stocks regulated. 117. Commissions of trustees. 890. Executed uses existing. Every estate which is now held as a use, executed under any former statute of the state, is confirmed as a legal estate. Formerly section 70, Real Property Law of 1896, chapter XLVI, General Laws: § 70. Executed uses existing. Every estate which is not held as a use, executed under any former statute of the state, is confirmed as a legal estate.29 29 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. Section 70 was formerly Revised Statutes, 727, section 46: 46. Every estate which is not held as an use, executed under any former statute of this state, is confirmed as a legal estate.30 Account of this Section. The foregoing section has distinct reference to the Statute of Uses, and to a state of things existent in the law of England prior to 27 Henry VIII, when the Statute of Uses was passed, fastening the possession and legal title to a certain. fiduciary interest called the "use," which, before then, was only cognizable in chancery." This important statute of England was, by extension, in force in the province of New York, after the English occupation, in the year 1664.32 It is one of the English statutes revised by Jones and Varick,33 under the act of the State Legislature, authorizing them to revise only those English statutes extending to the province,34 and adopted by the first Constitution of the State.35 It was afterward continued in those several revisions of the law of the State preceding the Revised Statutes. When the Revised Statutes subjected the entire law of Uses and Trusts to a general scheme of reform,37 the revisers first abolished, for the future, all uses and trusts, except those expressly authorized, in the Revised Statutes; but naturally at the same time they saved all legal estates which then existed in New York as executed uses solely under and by force. of the old Statute of Uses.38 The revisers, in their note to this section of the original revision, distinctly announce this, for they expressly say: "It seems proper to confirm all uses already executed as legal estates, in order to prevent the possible construction that they are included in the general abolition of uses." 30 Repealed, chap. 547, Laws of 1896. 31 27 Hen. VIII, chap. 10; Downing v. Marshall, 23 N. Y. at p. 378; Seaman v. Harvey, 16 Hun, 71, 73; Johnson v. Fleet, 14 Wend. 176, 180; Cuyler v. Bradt, 2 Cai. Cas. 326. 32 The patent to the Duke of York was to be holden by the socage tenure as it then existed in England. This involved all statutes, not repealed, antecedently affecting this tenure. "39 33 2 J. & V. 68; Bennett v. Garlock, 10 Hun, 328, 337, 338. 34 Chap. 35, Laws of 1786. 36 1 K. & R. 66; 1 R. L. 72. 381 R. S. 724, § 46; Bennett v. Garlock, 10 Hun, 328, 338. 39 Appendix III, infra. |
