Foster v. Stewart

California Court of Appeal Sep 30, 1933 No. Docket No. 4881.Published

Before: Plummer

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Holding. The court held that the restrictive agreement was unenforceable because it was not signed by all property owners as intended and constituted an invalid unlimited restraint on alienation.

Issues

Whether a restrictive covenant requiring signatures of all property owners is enforceable when not all owners signed.
Whether the restrictive agreement constitutes an invalid unlimited restraint on alienation under the Code of Civil Procedure.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court found from the testimony introduced, and also in the construction of the agreement, that it was not intended to have any force or effect until it had been signed by all of the property owners”

“The agreement is void as being against the provisions of sections 711 and 715 of the Code of Civil Procedure prohibiting an unlimited restraint of alienation.”

PLUMMER, J.

In this action the plaintiffs sought an injunction restraining and prohibiting the defendants (members of a colored race), from leasing, renting or occupying certain lots of land described in the complaint. Judgment went in favor of the defendants, and the plaintiffs appeal.

The record shows that the tract of land involved in this proceeding embraces 199 separate lots. The court found that 62 of the owners of the lots described in the plaintiffs’ complaint did not sign the agreement; that 18 of the signers did not own the lots set opposite their names in the complaint and alleged to be the owners thereof; that as to 5 of the lots, which apparently were owned by tenants in common, the agreement was not signed by all of the owners of the respective lots. The agreement contains no provision for forfeiture or penalty, and if otherwise valid, could only be enforced by a prohibitory injunction. No time is specified in the agreement for its duration, as appears by the following paragraph contained therein: “That we and each of us, the undersigned, the owners of the said several parcels of land, will not permit the said property, or any part thereof, to be leased to, or rented to, nor shall the same ever be used or occupied by any person of either the Negro, African or Asiatic race, or any person not of the White or Caucasian race, whether by the owner, tenant or

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any other person, except, however, that these covenants and conditions shall not prevent the employment on the said property of Negro, African or Asiatic servants.”

The map introduced in evidence showing the lots and blocks described in the complaint reveals that the _ lots ^ owned by the signers to the agreement are widely separated, do not constitute a solid mass, and are interspersed by a number of lots owned by persons not signing the agreement.

The court found from the testimony introduced, and also in the construction of the agreement, that it was not intended to have any force or effect until it had been signed by all of the property owners, which brings the ease directly within the ruling had in

Oberwise

Foster v. Stewart

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PLUMMER, J.

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