Cornbleth v. Allen

California Court of Appeal Dec 28, 1926 No. Docket No. 5507.Published

Before: Cashin

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Holding. The court held that a recorded agreement correcting restrictions in a deed constitutes constructive notice to subsequent purchasers, and that such conditions subsequent are enforceable and run with the land even if not recited in subsequent deeds.

Issues

Whether a recorded agreement correcting deed restrictions provides constructive notice to subsequent purchasers.
Whether conditions subsequent restricting property use are enforceable against subsequent grantees without specific mention in their deed.

Disposition. reversed

Quotations verified verbatim against the opinion

“The agreement was an instrument affecting the title to the real property described therein and in the deed to which it referred (sec. 1215, Civ. Code), and its recordation was constructive notice to respondents (Civ. Code, see. 1213).”

“A condition subsequent is attached to the title and runs with it as against the grantee of a subsequent deed who has constructive notice by the record or actual notice that his title would be subject to the condition”

CASHIN, J.

An action was brought by plaintiffs to quiet title to all of lot 53 of Minelita tract except the north twenty feet thereof, the property described being situated in the county of Los Angeles.

On July 8, 1920, the property was conveyed by grant deed executed by Henry and Georgina E. Freeman, two of the defendants, who are the appellants here, to Anna S. Swenson. The deed, which was recorded on August 5, 1920, contained the following provision: “Subject to taxes for the fiscal year 1920-21, conditions, restrictions and reservations of record, and the following: No offices, stores, flats, lodging house, double house, bungalow court, apartment house or business building of any kind to be erected, kept or maintained on said property, but a private two-story residence

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to cost not less than $5,000.00, and to be placed at a uniform distance of

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feet from property line, no building to be erected less than 10 feet from north line of lot conveyed by this deed, these restrictions run until 1920, the penalty for violation is reversion of title to vendor.”

Subsequently the grantors and grantee entered into an agreement in writing dated August 19, 1921, and recorded August 26, 1921, which, after reciting the execution of the deed mentioned and that “certain errors were made in the statement of restrictions as contained in said deed, which the parties hereto mutually desire to correct,” provided as follows:

“It is agreed by and between the parties hereto that the restrictions set forth in the said deed hereinbefore referred to shall be deemed withdrawn and canceled, and that in lieu of said restrictions and in the place and stead thereof it is mutually agreed that the said real property in the said deed and herein described shall from and after the execution of this agreement be subject to the following restrictions and no others:

“1. Any and all restrictions which were of record and of force and effect at the time of the execution of the said deed of,,July 8, 1920.

“2. Also the following restrictions, which shall have the same force and effect as though they had been embodied in the said deed of July 8, 1920, in the place and stead of erroneous restrictions which were so embodied in said deed: ‘No offices, stores, flats, lodging-house, double-house, bungalow court, apartment house or business building of any kind shall be erected, kept or maintained on the said property. The only buildings which may be erected, kept or maintained upon the said property shall be a two-story private residence to cost not less than $5,000.00 and to be placed at a distance of not less than

Cornbleth v. Allen

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CASHIN, J.

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