Maderis v. Pattavina

DOOLING, J.,

pro tem.

— These two eases were tried together and the appeals are presented on a single typewritten record. In each of them the plaintiff sought to enforce a condition subsequent contained in the respective deeds under which defendants derive title and to quiet title against defendants for violation of such condition. The lots involved, lots 32 and 33, were a part of a subdivision consisting of 34 lots known as Delwood Park. The subdivision map was recorded on October 20, 1924. Bach of the deeds from plaintiff and her husband, the original subdividers, to the lots in question contained the following language:

“This conveyance is made and accepted upon the express condition . . . that said property shall not be used or occupied by any person other than one of the Caucasian race. . . . ” And each contained a further provision that in the event of a breach of such condition the estate granted should terminate and become void and the property should revert to the grantors or their successors.

The court found as to the two lots in question that lot 33 had been occupied by negroes and that defendant Juana Pattavina, in occupancy of lot 32 with her husband, is a person of one-quarter negro and three-quarters Caucasian blood. For the purpose of this opinion we may assume, without deciding, that Juana Pattavina is not a person of the Caucasian race within the meaning of the condition in the deed.

The court found that plaintiff and her husband, at the time of the respective conveyances of lots 32 and 33 by them, orally represented to the grantees that all the lots in the subdivision were being sold subject to the conditions and restrictions contained in the deeds to them and that the grantees believed and relied upon such representations. It was further found that subsequently plaintiff and her husband conveyed' to others lots 31 and 34 of Delwood Park without any conditions or restrictions. From these facts the court concluded that the condition here involved had been

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waived and entered judgments quieting defendants’ title against plaintiff.

These judgments were clearly correct under the settled law in this state.