Oberwise v. Poulos

DOOLING, J.,

pro

tem.

This is an appeal by plaintiff from a judgment denying him injunctive relief by enjoining the defendants Carey Smith and Lillie B. Smith, his wife, who are persons of negro blood, from occupying a certain lot of land of which they are the owners, and which they • acquired from the defendants Poulos. The action is based upon ten separate instruments, all of which are in identical language and read as follows:

“Covenants of Restriction.

“This Agreement, made and entered into this - day of October, 1925.

“Witnesseth, that in consideration of the mutual covenants herein contained and for the benefit of the land and premises hereinafter described.

“We, the undersigned owners of real estate in the West Adams and Western Avenue Tract and the A. H. Carey’s West 29th Street Tract, both situate in the City of Los Angeles, State of California, agree to bind ourselves until January first, 1950, to the following restrictions:

“That we will not sell, convey, assign, let or sub-let unto or permit the use or occupancy of, by any person or persons other than of the Caucasion race, any of our land or property in the above named tracts;

“That this restriction shall be incorporated in all deeds of transfer of said property and shall be binding upon each party hereto, their assignees, transferees and successors in interest in said property until January first, 1950, and

“It is further understood and agreed that the foregoing restrictions, obligations and agreements shall be binding

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only upon the securing of one hundred forty (140) signatures and agreements hereto, exclusive of the lots or parcels of land fronting or facing on Western Avenue.”

To no single instrument were there 140 signatures attached, but the aggregate number of signatures affixed to the ten separate instruments was found to be 172. The plaintiff was a signer of one instrument, and defendant Joe Poulos was a signer of another. The court found that the ten separate instruments did not in fact constitute a single contract. However, for the purposes of this opinion, we will concede, without deciding, that the ten separate instruments are to be given the same effect as if all of the signatures had been affixed to a single document.