257 P. 199 | Cal. Ct. App. | 1927
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *568
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *569 This is an appeal by plaintiff from a judgment in favor of the defendants based on an order sustaining their demurrer to plaintiff's second amended complaint.
The complaint is in two counts. In the first count plaintiff alleges that the defendant Grace Sherwood Trumbull was the owner of lots 1 to 7, inclusive, in Block 1, of the Casitas Tract in Santa Barbara, as delineated on a recorded map, and that on May 3, 1922, the said defendant, together with her husband, Charles W. Trumbull, conveyed lot 7 to plaintiff, for a valuable consideration, by a deed of grant, of which a copy is attached to the complaint. The deed recites that the conveyance is subject to certain restrictions, declared therein to be "conditions running with the land." These restrictions continue in force until January 1, 1940, and provide that the premises shall be used only for private residence purposes and shall not be occupied by anyone not of the Caucasian race; also that the improvements shall cost not less than two thousand, five hundred dollars, and shall be set back at least thirty-five feet from the street line. The restrictions are not made to inure to the benefit of any of the other lots in the block, nor is any right of re-entry reserved in case of breach. *570 The deed states merely that any breach "may be enjoined, abated or remedied by appropriate proceedings had and taken by the grantors, their successors or assigns." Plaintiff alleges further that she was induced to purchase said lot by reason of promises made by the defendant Trumbull, through the defendant McFadden as agent, that defendant Trumbull would restrict in the same way the use of each of said other lots in said block, and would not convey any of them without subjecting the title to the same restrictions to which plaintiff's title was subjected. These promises, plaintiff alleges, were made by the defendant Trumbull without intent to perform and with intent to defraud plaintiff and induce her to accept title subject to the restrictions set forth. It is then alleged that by deed dated February 7, 1923, of which a copy is likewise annexed to the complaint, the defendant Trumbull and her husband conveyed lots 1 to 6 in said Block 1, together with other lots in the Casitas Tract, to the defendant McFadden, without any restrictions whatever.
The second count sets forth the same averments, and in addition alleges that by reason of defendant Trumbull's promises, plaintiff was induced to, and did, pay five hundred dollars more for her lot than she would have paid but for the promises made; and further, that by the conveyance of lots 1 to 6 to McFadden, without restrictions, the value of plaintiff's lots has been injured in the amount of five hundred dollars. Plaintiff prays for both actual and exemplary damages against defendant Trumbull, and further prays for a decree that her lot be freed from the restrictions imposed by the terms of her deed.
While defendants Trumbull and McFadden joined in the demurrer, yet they demurred therein separately as well as jointly to the entire complaint and to each separate count. The grounds of demurrer are that in neither count is a cause of action stated against either defendant; that there is a misjoinder of causes, in that a cause of action for damages is joined with a cause of action for reformation of the deed to plaintiff; and that the defendant McFadden is improperly joined as a defendant in the action with the defendant Trumbull.
[1, 2] So far as the defendant McFadden is concerned, his general demurrer was well taken. The second count *571
of the complaint seeks damages from the defendant Trumbull, but no damages are demanded of McFadden; nor does the complaint contain any allegations on which to base any claim against him for damages. [3, 4] The first count does not state a case for reformation of the deed, though the demurrer seems so to view that count. It really is aimed at quieting title against the restrictions in plaintiff's deed; but there being no mention in the deed of any other lots to be benefited by the restrictions, there is neither privity of estate nor privity of contract between plaintiff and the defendant McFadden, and no equitable servitude is in fact imposed on plaintiff's property in favor of any of the other lots in the block. [5] (Werner v. Graham,
[6] It is otherwise, however, as to the defendant Trumbull. Her demurrer admits not only that the promises alleged were made in order to induce plaintiff to buy lot 7, but that they were made without intent to perform; and the deed to McFadden shows that in conveying to him lots 1 to 6, defendant Trumbull did not keep her promises. [7] Hence the second count does state a cause of action for damages against her.
[8] In the first count it is made to appear that at the time when lot 7 of Block 1 was deeded to plaintiff subject to restrictions, defendant Trumbull also owned lots 1 to 6; and while no reversionary right is reserved in the deed to plaintiff, the grantors did reserve for themselves, their successors or assigns, the right to enjoin, abate or remedy by appropriate proceedings any breach of any of the restrictions. The right so reserved would be enforceable, in the absence of fraud, while the defendant Trumbull remained owner of the adjoining lots; but after she had parted with the property which would derive benefit from a continuance of the restrictions, she would have no standing, in a court *572
of equity at least, to complain of a breach. (Forman v.Sadler's Exrs.,
[10] In Werner v. Graham,
[11] So far as the joinder of the two causes of action, one to quiet title and the other to recover damages, is concerned, both causes arose out of the same transaction and are connected with the same subject of action. Joinder is therefore permissible under subdivision 8 of section 427 of the Code of Civil Procedure. [12] It is the disposition of the courts to give this subdivision a liberal construction, to the end that closely related controversies between the same parties may be adjudicated at one time. [13] Provided the causes are all connected with the same transaction or subject of action, the complaint may include causes legal *573
and equitable, ex contractu and ex delicto. (Macowsky v.Irvine,
[14] The demurrer on the ground of misjoinder of the defendant McFadden, while available to him, did not furnish the defendant Trumbull with a valid objection to the complaint. The action properly lies against the defendant Trumbull; and her interests not being affected by the joinder of McFadden as a co-defendant, it was not open to her to demur for misjoinder of parties. (Gardner v. Samuels,
The demurrer of the defendant Trumbull should have been overruled on all the grounds specified.
The judgment in favor of the defendant McFadden is affirmed, but the judgment in favor of the defendant Trumbull is reversed.
Works, P.J., and Thompson, J., concurred.