Union Trust and Realty Co. v. Best

SLOSS, J.

The plaintiff appeals from a judgment in favor of defendant, and from an order denying a motion for new trial.

The action was brought to compel the enforcement of a building restriction contained in an agreement for the sale of a residence lot by plaintiff to defendant.

The complaint alleges that in May, 1906, the plaintiff became the owner of a tract of land in the city of Los Angeles, comprising 461 lots; that it was and is plaintiff’s intention to sell said lots (with some exceptions not material here) for residence purposes, and to insert in every agreement for sale or conveyance made by it a covenant that the grantee or vendee would not, within five years, erect any dwelling on the lot conveyed closer than twenty feet to or from the front line of such lot. On May 19, 1908, it is alleged, plaintiff and defendant entered into an agreement for the sale to the latter of lot 226 of the tract for the sum of $573, payable in installments. Said agreement contained a covenant as aforesaid. On September 24, 1908, plaintiff executed a deed of the lot to defendant. It is alleged that defendant thereafter erected a dwelling within eight feet of the front line of said lot. The prayer is for an injunction restraining the defendant from permitting his dwelling to remain, at any time prior to May 20, 1913, closer than twenty feet to the front line of his lot.

The answer denies that defendant erected the building after the execution of the deed to him, and sets up, as an affirmative defense, that he purchased the lot from plaintiff through its agents, the Burck-Gwynn Company, on May 19, 1908, receiving from said agents a deposit receipt; that a building was located on said lot by defendant under the direction of plaintiff’s agents, and the same was erected and completed before the execution of the deed to him. It is alleged that at the time of the commencement of the construction, and thereafter until completion, the plaintiff had full knowledge of the location of the building on the lot, and that it received

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payment of the various installments of the purchase price from plaintiff, and made its deed to him, with such knowledge. It made no objection regarding the location of the house until March 1, 1909, long after the payment of the purchase price, the making of the deed, and the expending by defendant of over two thousand dollars in the erection of his building.