Sharp v. Quinn

SHENK, J.

This is an appeal from a judgment of mandatory injunction in favor of the plaintiff. The plaintiff and the defendants are, respectively, the owners of adjoining residence lots on Fortieth Avenue between Geary and Clement Streets in the city and county of San Francisco. The block is known as Outside Land Block No. "220. The tract was subdivided and sold by Jacob Weissbein. The plaintiff and the defendants deraign title from Weissbein and wife as their common grantors. Each original deed contained building restrictions among which were: That “walls of brick, stone or concrete . . . not exceeding six feet in height . . . may be placed thereon” and “that all residences facing on . . . 40th avenue shall be set back . . . not less than 15 feet from a point in the center of said front boundary of said lots”. The plaintiff’s residence "was constructed in conformity with said restrictions. The defendants acquired the adjoining lot and constructed improvements thereon. The construction work was commenced on February 19, 1925, and was completed on June 18th of the same year. The court found that the house was built 13.38 feet from the front boundary line; and that a concrete wall had been constructed more than six1 feet in height and that said structures were in violation of said building restrictions. A judgment of injunction was entered commanding the defendants to move the building back or otherwise make- such change therein as to conform to said setback restriction and likewise to cause the concrete wall so to conform. From this judgment the defendants have appealed.

Each original deed issued contained also the following provision: “Eighth. That at any time after sixteen (16) of the lots, in said Outside Land Block No. 220 have been sold and conveyed by the said parties of the first part [Weissbein and wife], their heirs and successors or assigns, the several restrictions, conditions and covenants aforesaid

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may be abrogated, rescinded, or annulled, in whole or in part, by the owners of not less than sixteen (16) of the lots in said block, evidenced by an instrument in writing executed by the said owners in the manner provided by law for the conveyance of real property, and duly recorded in the office of the county recorder aforesaid.”

One of the defenses interposed by the defendants was that on the seventh day of September, 1925, more than 16 lots in said block had been sold and conveyed by the original grantors and that on that day, pursuant to the eighth provision of said deeds, above quoted, an instrument in writing had been duly executed in the manner provided by law for the conveyance of said property, and in which it was provided that in accordance with the power conferred upon the signers of said instrument by the terms of said deeds “that the restrictions, conditions and covenants hereinafter specifically set forth, and which said conditions, restrictions and covenants are a portion of those contained in the aforesaid deeds, are hereby abrogated, rescinded and declared to be null and void as to all of said Outside Land Block No. 220 and any part thereof”. Included in the restrictions so specified were those relating to the set-back line and the concrete wall. This instrument was, on the eleventh day of September, 1925, duly recorded in the office of the county recorder. Weissbein and wife joined in the execution of said instrument, but the plaintiff did not join. A copy of this instrument was annexed to and made a part of the answer. The genuineness and due execution of said instrument was admitted by failure to deny the same as provided in section 448 of the Code of Civil Procedure.