Firth v. Marovich

SLOSS, J.

On January 21, 1907, the plaintiff conveyed to Charles Scherer lot 2 in Walnut Park in the city of Los Angeles, by a grant deed containing the following provisions : “This conveyance is made and said real property is sold subject to the following conditions:

“That no building whatever except a private residence with the customary outbuildings, including a private stable, shall be erected, placed, or permitted on said premises or any part thereof, and that such building shall be used as a private residence only, and shall cost, and be reasonably worth, not less than fifteen hundred (1500.00) dollars, and shall bo located not less than twenty (20) feet from the front or street line of said lot, namely, on Vernon Avenue, and it is further agreed that no barn or shed, or other building shall be built or located closer than ninety (90) feet from the front or street line of said lot.

“That any breach of the foregoing conditions, or any of them, occurring after the delivery of this deed, shall have the effect of forfeiting the title of the grantee and his assigns, and thereupon the title to said real property shall revert to the grantor.”

The deed was duly recorded. Subsequently Scherer conveyed the lot to the defendant Mary Lena Marovich. The purpose of this action is to compel a reconveyance to plaintiff, who claims that the title conveyed by him has become forfeited by breach of the condition above quoted. (Civ. Code, sec. 1109.) At the trial, the court, upon motion of defendant, granted a nonsuit, and plaintiff appeals from the resulting judgment and from an order denying his motion for a new trial.

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The complaint alleges, in addition to the facts already-stated, that, at the time of the conveyance to Scherer, the plaintiff was, and that he is, the owner of other lots near the one in question, that said lots are in a residence district, and that their value is affected by the character of the improvements erected in their vicinity. Before and after the sale to Scherer, it is alleged, the plaintiff made sales of some others of such lots by deeds containing conditions similar to those above set forth. These conditions were inserted pursuant to a general plan of building up said locality, and for the benefit of the lots and of purchasers thereof. At the time of the conveyance to Scherer, and of his conveyance tó Marovich, there was no building upon lot 2, but shortly after defendant Mary Lena Marovich went into possession of said lot, she erected thereon, without plaintiff’s consent, a building to be used and which ever since has been and now is used as a dwelling, the cost and the reasonable value whereof does not exceed eight hundred dollars. Said building is unsightly and a detriment to plaintiff’s remaining lots. Upon learning of the nature and cost of said building he notified the defendant Mary Lena Marovich that it must be removed, but she has refused to comply and has persistently used said building as a dwelling. Plaintiff has also demanded a reconveyance and the possession of said lot, which demand has been refused.