Currie v. Title Insurance & Trust Co.

In this action the plaintiffs seek a decree quieting their title to real property. The complaint is in the ordinary form of such actions. The answer of the Title Insurance and Trust Company admits plaintiff’s ownership, but alleges as a defense that the title is subject to certain conditions or restrictions contained in the deed by which the defendant corporation transferred its title to plaintiff’s predecessor in interest, one W. H. Hay. The clause relied upon is in the language ordinarily used in similar transactions. It beging, “this deed is made and accepted upon the following conditions subsequent,” then follows a provision against the use of a building erected thereon for certain business purposes, the erection of oil derricks, dwelling-houses under a certain cost, and the occupation, etc., of the premises by any person of African descent; the paragraph concludes as follows: 1 ‘ and that a violation of any of said conditions shall work a forfeiture of title thereof to the said party of the first part, its successors or assigns.”

It is alleged in the answer that before plaintiffs acquired any interest or title in the property defendant corporation

[1] At the outset the appellant challenges the right of respondent to maintain an action to quiet title even though it be conceded for the purpose of the discussion of this phase of the case that the corporation has ceased to possess the right to relief by injunction or forfeiture. As authority for this contention we are cited to Strong v. Shatto, 45 Cal. App. 29 [ 187 Pac. 159 ]. Our attention is called to the following language used in that opinion: “But the rule does not go to the extent of permitting parties whose land is subject to the legal restraint of such limitations to bring action to quiet their title against such contractual obligations, because of changed conditions. Contractual obligations do not disappear as circumstances change. It is only the granting of equitable relief, and not the binding force of the restrictive covenant, that is affected by a change in the conditions.” The change in the instant case, if there is one, is not due to a change in conditions concerning the property but to one in the ownership of the property; a change which is the result of contract. It is not an alteration in conditions, but one of title. While contractual obligations do not disappear as the result of a change in circumstances, such obligations may disappear through additional agreements and the voluntary transfer of one’s contractual rights. The language quoted by appellant was directed toward the claim of the plaintiff in that case that because the property had so changed that it had become more valuable for business than for residence purposes, a court of equity should quiet title of lot owners against the conditions subsequently imposed by their contracts. It was not claimed that the grantor of the property had lost his right of re-entry by reason of any

If these restrictive provisions were intended as covenants, easements in gross might be created as well as easements appendant. In this regard the instant case is directly within the scope of that part of the opinion in Werner v. Graham, in which the court passed upon the existence of a servitude in favor of lots which the grantor, the subdividor of the tract, still owned when he sold the lot whose title was sought to be quieted and to which lot he had given a quitclaim deed. In discussing that question the opinion reads: “The situation in this respect is that one, the owner-of a tract of land sells a portion of it, exacting of the grantee restrictive provisions as to its use, but without a word indicating that the land conveyed is part of a larger tract, the balance of which the grantor still retains, or that the restrictions are intended for the benefit of other lands, or that their benefit is to inure to, or pass with, other lands, and without

[2] The language of the supreme court to which we refer was directly applicable to the issue involved. Deeds containing building restrictions had been made by the subdividor of a tract of 132 lots. Some of the instruments were executed before and some after the one to the lot whose title was sought to be quieted. The same restrictions were placed in each of the deeds. In selling the lots the grantor had represented to the purchasers that he was exacting the same restrictions from all. The respective purchasers impliedly consented thereto and relied thereon and fully appreciated the fact that the imposition of the restrictions were a part of a general plan. In view of the decisive and certain language arid unanswerable reasoning used, and of the complete consideration given the subject by the supreme court in the Werner v. Graham case in passing upon this exact question, we need not consider the matter further. As we interpret the authorities and apply them to the facts presented, the restrictive provisions were conditions and not covenants. But even though we should class them as covenants it must be held that they were intended to create easements in gross. In either event they inured to the grantor, the Title Insurance and Trust Company and its assigns, and not to the owner of certain lots of land and the various ’ successors in interest of such lot owners.

The judgment is therefore reversed.

Finlayson, P. J., and Works, J., concurred.