Bart v. Streuli

THE COURT.

This is a motion to dismiss an appeal or affirm the judgment in the above-entitled cause. Plaintiff sold real property to defendants, taking back a purchase money mortgage for $1600. The mortgage contained the usual provisions against removal or demolition of any building, and required that the defendants cultivate, fertilize and prune the growing trees. Plaintiff brought this action to fore

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close, alleging breach of the above covenants. The trial court found that defendants removed the front porch, as .part of a scheme of' improvement which enhanced the value of the premises by $500, and that although defendants did not cultivate, fertilize or prune, the trees did not require any attention and were in no way diminished in value by lack of attention. Judgment was accordingly rendered for defendants and plaintiff appealed.

It is clear that plaintiff was not injured in any way, and was in fact benefited by defendants’ acts. Under the circumstances the court had power to relieve against the effect of any technical violation of covenants in the mortgage.

(Ebbert

v.

Mercantile Trust Co.,

213 Cal. 496 [2 Pac. (2d) 776].)

The judgment is affirmed.