Chandler v. Smith

[119]

WARNE, J. pro tem.

*

In the year 1953, the defendants, Walton and Smith, deeded certain real property situated in Sutter County to one Frederick J. Beer. The deed contained a number of building and use restrictions declared to be covenants running with the land and binding upon the grantee, his heirs, executors, and administrators until January 1, 1980. The deed expressly provided that the grantee’s title should not be forfeited or impaired by violation of the restrictions, but that the grantors, their successors in interest, and any other residents or householders in the neighborhood should have a right of action for injunction and damages or to enforce compliance with the restrictions. On the face of the deed the grantee declared himself bound by the restrictions. This deed was duly recorded on November 24, 1953. Thereafter, in 1954, Beer and his wife executed a first deed of trust on the south 100 feet of said property to the Bank of America, as beneficiary, and in 1955 they executed a second deed of trust to said south 100 feet of said property with the Sutter Union Lumber Company, as beneficiary. Neither deed of trust referred to the restrictions contained in the deed from the defendants Walton and Smith to Beer. In October, 1956, this south 100 feet of the property was sold under the second deed of trust to the plaintiffs, and the trial court found that they purchased the property without knowledge of the restrictions contained in the deed executed by the defendants Walton and Smith to Beer.

Plaintiffs thereafter brought this action to quiet title and for declaratory relief. The trial court found that the asserted use and building restrictions were not for the benefit of the property conveyed and “that said deed describes no dominant tenement.” Judgment was entered quieting plaintiffs’ title and this appeal followed.

Defendants contend that although the covenants set forth in the deed are not such as to create equitable servitudes or covenants running with the land at law, the restrictions are established nevertheless by the doctrine of constructive notice, that is to say, that recording of a deficient instrument would give it validity. All subsequent dealers with the property would have constructive notice of the previous owner’s attempt to create such restrictions and would be bound thereby.

In