Currie v. Title Insurance & Trust Co.

California Court of Appeal Dec 20, 1922 No. Civ. No. 3877.Published

Before: Craig

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Holding. The court held that restrictive provisions in a deed were conditions rather than covenants, and because the deeds lacked language indicating a common plan or dominant tenement, they did not create mutual servitudes or easements appurtenant for the benefit of other lot owners. Consequently, the grantor's reversionary interest did not inure to other lot owners, and the plaintiffs were entitled to quiet title.

Issues

Whether a property owner may maintain an action to quiet title against restrictive conditions in a deed when the grantor has allegedly divested itself of its reversionary interest.
Whether restrictive provisions in a deed create mutual servitudes or easements appurtenant in the absence of language in the deeds indicating a common plan or a dominant tenement.

Disposition. reversed

Quotations verified verbatim against the opinion

“The restrictive provisions in this deed are in the form of conditions and not covenants.”

“It is not the intent of the original owner that governs in such eases, but the joint intent of himself and grantees”

“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.”

CRAIG, J.

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

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was the owner of all the lots in any tract of which plaintiff’s property is a part; that the corporation thereafter conveyed all of said lots to divers persons; that in all of the conveyances there was inserted conditions or restrictions substantially the same as those in the deed to Hay; further, that these conditions or restrictions were placed on all of the lots “for the equal benefit of each and every lot within said tract and in pursuance of a general scheme for the development and improvement of said tract and said lots.” Plaintiffs demurred generally, and the trial court sustained the demurrer without leave to amend and judgment was entered for the plaintiff.

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

Currie v. Title Insurance & Trust Co.

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CRAIG, J.

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