215 P. 678 | Cal. | 1923
Plaintiffs appeal from a judgment in favor of defendants in a suit to enjoin defendants from proceeding with the erection of a building in violation of a uniform building restriction. The sole question presented upon the appeal is whether the complaint states facts sufficient to constitute a cause of action. It is alleged in the complaint that one Allen, who was the owner of a large parcel of land, caused a map thereof to be recorded, subdividing the same into a large number of lots, and then proceeded to sell and convey said lots by reference to said map to various persons, including the predecessors in interest of plaintiffs and defendants "and in accordance with a general plan or scheme for the improvement of said tract the said owner inserted in each and every deed conveying said lots, or any of them, restrictions and conditions in words and figures as follows: 'Subject to following building restrictions: no offices, stores, flats, lodging or apartment or any business building of any description to be erected, kept or maintained on said property, but a residence, same when erected to cost not less than three thousand ($3000.00) dollars on lots 48, 49, 50, 51, 52, 53 and south 30 feet of lot 47; to cost not less than thirty-five hundred ($3500.00) dollars on lot 44 and north 15 feet of lot 43; to cost not less than four thousand ($4000.00) dollars on north 90 feet of lot 47; and all to be placed at a uniform distance of forty-two and one-half feet from front property line on Willard Ave.'; that all of the lots in said tract have been sold or are being offered for sale in accordance with said general plan or scheme, and subject to said restrictions and conditions, and that said restrictions were imposed and said general plan or scheme adopted for the general benefit of all lots in said tract, and that the respective lots owned by plaintiffs, and each of them, and the lot now owned by defendants, and the other lots in said tract sold and conveyed as aforesaid, were each and all conveyed by a common grantor, to wit, the said E.L. Allen, and subject to the restrictions and conditions aforesaid and pursuant to and in accordance with the aforesaid general plan or scheme for the improvement of said tract and the several groups of lots shown on said *154 map"; that by mesne conveyances, each containing the same restrictions, plaintiffs received title to their respective lots and defendants received title to their lot; that the plaintiffs or their predecessors in interest purchased their respective lots in reliance upon said general plan or scheme and upon said restrictions and conditions, and that each of the plaintiffs has, erected upon his lot a residence in compliance with said restrictions; and that defendants are now proceeding with the erection of a building on their said lot which is in violation of said restrictions.
[1] The question thus presented is stated by appellants as follows: "Does one grantee who buys his property with the understanding that it is restricted, and in reliance upon the existence of a general plan of improvement for the whole tract of which his lot forms a part, have a right in equity to enforce the restriction against another grantee who takes with full knowledge and notice of the restriction, the covenants being a part of each and every deed to lots in the tract and the deeds showing that a uniform plan must have been in existence?" This precise question was answered adversely to appellants' contentions in the case of Werner v.Graham,
Appellants suggest, in effect, that Werner v.Graham should be overruled, and assert that it is contrary to the great weight of authority from other states. The latter may be conceded, but presents in itself no sufficient reason for a departure at this time from the rules there enunciated. After a careful reconsideration of the questions there involved, we are satisfied with the validity of the conclusions there stated, and with the soundness of the reasoning by which they were reached. The rules there enunciated are rides of property and have stood unchallenged and unquestioned for more than three years. That case has since been cited as authority by this court in Los Angeles etc.Co. v. Marr,
In the Werner case the court said: "There are decisions to the effect that when it appears that the owner of a subdivided tract has sold various lots in it from time to time and in each conveyance has exacted restrictive covenants which it is evident, when all the deeds are considered together, were exacted in accord with a common plan, it is enough, and that mutual equitable servitudes have been created, although in any single deed taken by itself there is nothing to indicate any intent to create reciprocal rights. [Citing cases.] There is likewise authority to the contrary. (Mulligan v.Jordan,
Appellants apparently lose sight of the fact that their right to relief herein must rest upon the foundation of a contract between the original grantor and defendants' predecessor in interest, whereby it was agreed that the restrictions should be for the benefit of all the lots in the tract, not merely for the benefit of the grantor, and upon the further foundation that defendants purchased their lot with knowledge or notice of such agreement. As Lord Cottenham said in Tulk v.Moxhay, 2 Phill. Ch. 774: "The question is not whether the covenants run with the land, but whether a party shall be permitted to use the land in a manner inconsistent with thecontract entered into by his vendor and with notice ofwhich he purchased." (Italics added.) And as was said inNottingham Patent Brick etc. Co. v. Butler, 15 Q. B. Div. 261: "Where the same vendor selling to several persons plots of land, parts of a larger property, exacts from each of them covenants imposing restrictions on the use of the plots sold, without putting himself under any corresponding obligation, it is a question of fact whether the restrictions are merely matters of agreement between the vendor himself and his vendees, imposed for his own benefit and protection, or aremeant by him and understood by the buyers to be for the common advantage of the several, purchasers." (Italics added.) It takes two to make a contract. There must be a meeting of the minds of both parties thereto. The mere fact that the vendor in the exaction of uniform building restrictions had in his own mind a general plan or scheme of improvement falls short of establishing even his own intention that such restrictions shall be for the benefit of anyone other than himself, and much less does it establish such a meeting of minds between him and his grantee as is necessary to create a contract. Given such intention in the mind of the grantor, there must have coexisted a like intention in the mind of his grantee before the first element of plaintiff's cause of action can come into existence. A purchaser, realizing that changed conditions in the future might render a release of the restrictions most desirable, might be willing to purchase subject to restrictions for the benefit of a single vendor, while he would be wholly unwilling to purchase subject to the same restrictions in favor of fifty or five hundred other lot owners, any one of whom could prevent *159 the release thereof in the future. He might be willing to take the chance of being able to negotiate with his vendor for a release, of the restrictions at a later date, but would realize that such a prospect would be hopeless if there should be a large number of separate lot owners each entitled to insist upon the maintenance of the restrictions. It is not necessary to invoke the rule of the. Werner case herein in order to sustain the judgment appealed from, because the complaint is wholly lacking in any averment that the restrictions were intended by both parties thereto to be for the benefit of all the lots in the tract, and is wholly lacking in any allegation that the defendants purchased their lot with knowledge or notice of any such intention or agreement.
The case of De Gray v. Monmouth Beach Club HouseCo.
[3] Appellants' contention that they should have been permitted to introduce parol evidence to establish the intention of the parties may be sufficiently answered by pointing out that they were not entitled to introduceany evidence thereof because their complaint contained no allegation as to the intention of the grantees in said deeds, and, therefore, tendered no issue to which such evidence would be relevant. [4] But aside from this consideration, we are satisfied that it is our duty to adhere to the conclusion expressed in the Werner case "that if the parties desire to create mutual rights in real property of the character of those claimed here, they must say so and must say it in the only place where it can be given legal effect, namely, in the written instruments exchanged between them, which constitute the final expression of their understanding." Any other rule would make important questions of the title to real estate largely dependent upon the uncertain recollection and testimony of interested witnesses. The rule of the Werner case is supported by every consideration of sound public policy which has led to the enactment and enforcement of statutes of frauds in every English-speaking commonwealth.
The judgment is affirmed.
Lawlor, J., Lennon, J., Waste, J., Kerrigan, J., Seawell, J., and Wilbur, C. J., concurred. *161