Blodgett v. Trumbull

JOHNSON, J.,

pro

tem.

This is an appeal by plaintiff from a judgment in favor of the defendants based on an order sustaining their demurrer to plaintiff’s second amended complaint.

The complaint is in two counts. In the first count plaintiff alleges that the defendant Grace Sherwood Trumbull was the owner of lots 1 to 7, inclusive, in Block 1, of the Casitas Tract in Santa Barbara, as delineated on a recorded map, and that on May 3, 1922, the said defendant, together with her husband, Charles W. Trumbull, conveyed lot 7 to plaintiff, for a valuable consideration, by a deed of grant, of which a copy is attached to the complaint. The deed recites that the conveyance is subject to certain restrictions, declared therein to be “conditions running with the land. ’ ’ These restrictions continue in - force until January 1, 1940, and provide that the premises shall be used only for private residence purposes and shall not be occupied by anyone not of the Caucasian race; also that the improvements shall cost not less than two thousand, five hundred dollars, and shall be set back at least thirty-five feet from the street line. The restrictions are not made to inure to the benefit of any of the other lots in the block, nor is any right of re-entry reserved in case of breach.

[570]

The deed states merely that any breach “may be enjoined, abated or remedied by appropriate proceedings had and taken by the grantors, their successors or assigns.’’ Plaintiff 'alleges further that she was induced to purchase said lot by reason of promises made by the defendant Trumbull, through the defendant McFadden as agent, that defendant Trumbull would restrict in the same way the use of each of said other lots in said block, and would not convey any of them without subjecting the title to the same restrictions to which plaintiff's title was subjected. These promises, plaintiff alleges, were made by the defendant Trumbull without intent to perform and with intent to defraud plaintiff and induce her to accept title subject to the restrictions set forth. It is then alleged that by deed dated February 7, 1923, of which a copy is likewise annexed to the complaint, the defendant Trumbull and her husband conveyed lots 1 to 6 in said Block 1, together with other lots in the Casitas Tract, to the defendant McFadden, without any restrictions whatever.