Young v. Cramer

BARNARD, P. J.

In this action the appellant sought a judgment declaring that the title to certain real property had reverted to him because of the breaching of the restrictions and conditions set forth in a deed by .which the property had been conveyed to a predecessor of the respondents.

The appellant was originally a beneficiary under a subdivision trust in which a bank was the trustee. All of the lots in the subdivision were sold and all were conveyed by the

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trustee through deeds containing the restrictions, conditions and provisions here in question. The respondents’ predecessor purchased two of the lots and later conveyed them to the respondents. After all of the lots were sold the trustee bank conveyed its right of reentry to the beneficiaries of the siibdivision trust in proportion to their respective interests in the trust. The appellant, claiming a violation of certain building restrictions, sought a judgment declaring that the title to these two lots had reverted to him, although he holds only an undivided 550/1000ths interest in said right of reentry and the holders of the other fractional interests in said right of reentry have refused to join him in the prosecution of the action.

The complaint alleged that all lots in the tract were conveyed by deeds containing certain building restrictions, which are set forth, and also containing the following provisions:

“Provided, further, That a breach of the foregoing conditions and restrictions shall cause said premises to revert to the grantor, its successors or assigns, each of whom respectively shall have the right of reentry immediately upon said premises in the event of any such breach; and as to the owner of any other lot in said Tract, the foregoing restrictions and conditions shall operate as covenants running with the land, and a breach of any such covenants or continuance of any such breach may be enjoined, abated, or remedied by appropriate proceeding by such grantor, its successors or assigns, or by any such owners, their heirs, devisees, executors, administrators, successors or assigns, but by no other person.

“It is understood and agreed that the foregoing conditions and restrictions are a part of a general plan for the improvement of Tract 4642, which plan contemplates that all of the lots in said Tract shall be used for residence purposes only, except as hereinabove specifically provided, and that said conditions and restrictions are for the benefit of said Tract, and each and every parcel of land therein, and shall inure to and pass with said Tract, and each and every parcel of land therein, and are hereby imposed upon the premises covered by this conveyance as a servitude in favor of said Tract, and each and every parcel of land therein as the dominant tenement or tenements.”