291 P. 822 | Colo. | 1930
MABLE K. Ziegler and Edward C. Ziegler, plaintiffs below, obtained a judgment for $400 against Lemuel V. *3 Chandler in an action for deceit. Chandler seeks a reversal of the judgment.
Chandler is a real estate dealer. He makes a specialty of acquiring large tracts of suburban real estate and dividing them into small tracts or lots and selling them. One of the tracts acquired by him is Kelton Heights in Jefferson county. He sold one of the lots (lot No. 13) in Kelton Heights to the Zieglers. The Zieglers allege that they bought the lot in reliance upon Chandler's representation that all of the lots in Kelton Heights were restricted so that they could be owned, leased or occupied by white persons only, and that all of said lots were restricted against colored people; that said representation was false, and known by Chandler to be false; and that there was no restriction whatever in the deed to lot No. 14, immediately adjoining the lot bought by the Zieglers. They also allege other facts necessary to a complete statement of a cause of action for deceit. Chandler denies that the representation made to the Zieglers was exactly as alleged by them, but admits that the representation made by him was, that all of the lots in Kelton Heights were restricted so that they could never be sold to, or owned, leased or occupied by, a colored person. He admits that prior to selling lot No. 13 to the Zieglers he owned and conveyed lot No. 14 "without any restrictions * * * in relation to those that might own, lease or occupy said premises," and that there were no restrictions upon the sale or occupancy of that lot.
[1] 1. Counsel for Chandler contend that the representation was not material. This contention is without merit.
[2] 2. It is said that the representation was not relied upon and was not the cause of the transaction. The verdict of the jury, based upon sufficient evidence, settles this question adversely to such contention.
[3] 3. We cannot sustain the contention that there was no evidence sufficient to go to the jury on the *4 question of damages. The witness Thompson, a licensed realtor, was Chandler's agent for the sale of lots in Kelton Heights and acted for Chandler in the sale of the lot to the Zieglers. He had lived in Kelton Heights for two years. He testified that the difference between the value of the Zieglers' lot as it was and as it would have been had the representation been true was $1,100. He did not say whether the value would have been that much more or that much less had the representation been true, but from other evidence it is clear that he meant the former. Much of the evidence on this subject is open to criticism, but some of the evidence is not.
4. Another contention is that the action, so far as it is based upon the representation that the lots were restricted so that they could be owned by white persons only, cannot be maintained, because if such a restriction had been inserted in a deed conveying a fee simple title it would be repugnant to the estate conveyed and would be contrary to public policy, and for these reasons would be void.
[4] Where an estate in fee simple is conveyed, a provision that the grantee shall never convey the title to the property is void. Where, however, the restraint is only partial as to persons or is limited in time, the authorities are in conflict respecting the validity of the restraint. A person owning a body of land and selling part of it may, for the benefit of his remaining land, lawfully impose certain restrictions upon the use or occupancy of the land sold. 7 R. C. L., p. 1114, § 30. Thus, we have held that a condition in a deed conveying an estate in fee simple that intoxicating liquors shall never be manufactured, sold or otherwise disposed of as a beverage in any place of public resort in or upon the conveyed premises is a valid, enforceable condition. Cowellv. Colorado Springs Co.,
A person who owns a tract of land and divides it into smaller tracts for the purpose of selling one or more may prefer to have as neighbors persons of the white, or Caucasian, race, and may believe that prospective purchasers of the several tracts would entertain a similar preference, and would pay a higher price if the ownership were restricted to persons of that race. Surely, it is not unreasonable to permit such a person to insert in his deeds a provision restricting not only the occupancy but also the ownership of the tracts conveyed by him.
[5] Such a restriction would not violate any right protected by the Fourteenth Amendment to the Constitution of the United States. That amendment prohibits state action only; it has no application to discriminatory provisions in deeds or wills. Civil Rights Cases,
[6] According to what we consider the better rule, such a restriction as we are discussing is not contrary to public policy. In Corrigan v. Buckley,
[7] Nor, in our opinion, is such a restriction void for repugnancy to an estate in fee simple. The decision inCowell v. Colorado Springs Co., supra, was affirmed by the Supreme Court of the United States. Cowell v. ColoradoSprings Co.,
[8] We hold that the restrictions to which Chandler represented that the property was subject would not have been void had they been inserted in the deed to lot No. 14, and that the false representation that all of the lots in Kelton Heights were subject to such restrictions subjects Chandler to liability in this action.
[9]. 5. An error in the instruction on the measure of damages necessitates a reversal of the judgment. The measure of damages where the property would be more valuable had the representation been true, is the difference between the actual value of the lot at the time of its purchase and what its value would have been had the representation been true. Nielsen v. Hansford,
There is no necessity for a retrial of all the issues. The sole question of damages should be submitted to a jury under proper instructions.
The judgment is reversed, and the cause is remanded for a new trial on the question of damages only. *8