Horton v. Citizens National Trust & Savings Bank

SHINN, Acting P. J. This is an action for declaratory judgment which affects the rights of all of the owners of lots in Tract 9038, in the county of Los Angeles, a residential subdivision comprising some 93 lots. The action was instituted by C. C. Horton, one of the lot owners. He has since deceased and Prances D. Horton has been appointed as executrix. An order of substitution has been applied for and made, but our references will be to Mr. Horton as plaintiff. The court is advised by counsel who represented the plaintiff at the trial, that they have been instructed that the executrix has employed other counsel and does not wish to defend the appeal. Consequently, no brief has been filed on behalf of the respondent.

The tract is restricted under a declaration recorded by the owners many years ago pursuant to which all of the lots have been sold and titles conveyed subject to the restrictions. The paragraph of the declaration here involved provides for the appointment of a Board of Architecture composed of three members, which board is vested with the authority to approve or disapprove plans, specifications and color scheme for any building constructed in the tract, and further authority to approve or disapprove any changes in the exterior of residences, the destruction of trees, and the installation or alteration of fences, walls, poles and other structures in the tract. No building or other structure may be erected on any of the lots until plans therefor have received the written approval of the Board of Architecture. The matter in controversy here is whether the members of this board are to be selected by the present lot owners with the consent and approval of the Citizens National Trust and Savings Bank of Los Angeles, or whether the bank alone is authorized to appoint the members. Plaintiff contends for the former construction of the declaration of restrictions and he alleges in his complaint that the issue raised is one of common and general interest to all of the lot owners and that he therefore brings this action on their behalf and for their benefit, alleging that they are more than 100 in number and that it is impracticable to bring them all before the court.

The essential facts giving rise to the controversy are the following: In 1924, one W. S. Sparr, who then owned the acreage now comprising Tract 9038, conveyed the same to Citizens Trust and Savings Bank, a state bank, which later, through merger and consolidation, became Citizens National Trust & Savings Bank. The bank issued a declaration of sub[682]division, trust, with Sparr as sole beneficiary, and at the same time loaned Sparr certain money which was secured by the terms of the declaration. In 1930, Sparr and the bank conveyed their respective beneficial interests in the trust to Land Corporation Company, Limited, and a new declaration of trust was issued by the bank with the Land Corporation as sole beneficiary, under which latter declaration the bank continued to sell and convey lots, and later a third declaration was issued with the Land Corporation as sole beneficiary. In 1940, Land Corporation assigned to the bank its entire beneficial interest, thereby authorizing the bank as owner to terminate the trust, which the bank proceeded to do. Some three months before the institution of the present action the bank sold the last of the unsold lots.