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initions. Upon a consideration of the whole | Am. Dec. 425; Cravens v. White, 73 Tex, 577, instrument and the circumstances appearing 11 S. W. 543, 15 Am. St. Rep. 803. The therefrom, the intention of the parties is clause is, therefore, in effect, a limitation not difficult to ascertain. The main object upon the estate of the grantee in the serenof the grantors, which is expressed in the acre tract to the extent that it could not last clause, was to secure railroad transpor take rock therefrom except for the purpose tation to the Declez quarries, and the other therein stated. Hence it follows that the clauses manifest a clear purpose to give noth- | grantee had no right, as against the grantors, ing not necessary to attain that object. They to take the rock for the purpose of constructwere careful to insert a provision forfeitinging a breakwater. the granted estate upon the failure to build In support of the position that the limithe road within two years, or to operate it tation clause is a mere personal covenant, thereafter, so that, upon failure to secure binding on the Pacific Improvement Comthe object, the grantors would lose nothing pany alone, the defendants rely on the deand the grantee would obtain nothing. The cision in Los Angeles Terminal Land Co. seven acres were manifestly demanded by v. Muir et al., 136 Cal. 36, 68 Pac. 308. The the grantee in order to get rock therefrom clause considered in that case followed a for use in its business of railroad construc clause purporting to grant an estate in fee tion. The purpose of the limitation clause,

simple, and it was expressed in these words: though awkwardly expressed, was to define

"It is hereby covenanted and agreed by and and restrict this right as the parties under

between the parties hereto, that, in considerstood it to be given. It qualifies the grant ation of this conveyance, no saloon busifor the benefit of the grantors, and conse

ness or business of vending malt, vinous, or quently is, in effect, a reservation to be in

spirituous liquors, shall ever be carried on terpreted in their favor. The design was,

upon said lot, neither shall said lot be used in part at least, to protect the contingent

for any business or store purpose other than estate so that, if it became vested, the gran

for hotel, lodging house or club purposes." tors would not find it stripped of the rock

It did not purport to be made by, or on benot required for the uses allowed. To con

half of, or for the benefit of, the assigns strue it as providing that all the rock could

or lessees of either party, but ran to the be removed by the grantee, but that, when re

parties only, and the deed contained no resmoved, no use could ever be made of any of

ervation to the grantor of any interest, it, except the limited use mentioned, so that

conditional or otherwise, in the land granted. the remainder could be taken for no purpose

Herein it was essentially different from the at all, except to violate the agreement, or

instrument here in question. In that case wantonly to injure the grantors, would ren. der the clause, to that extent, foolish, ridicu

the original grantee was nor a party to the lous, and vicious. A construction producing action, and the court, upon the point that

the covenant was personal and binding on such results is to be avoided if any other

the grantee only, and hence not enforceable reasonable meaning is possible. In view of the objects to be accomplished, the pro

in equity against a subsequent grantee, say vision that "the conveyance is for the pur

that the plaintiff in that case, who was the pose and with the limitation that the rock

grantor, "could have inserted a covenant taken from the land by the grantor is for

which would have inured to the protection railroad purposes," may reasonably be under

of plaintiff's grantee or successor in interstood to have been intended to prohibit the

est, and would have expressly bound the taking of rock for any other purpose. The

Yacht Club [the grantee in the deed]. It did doctrine that, where the habendum, or other

not do either, but contented itself with a subsequent clause, is repugnant to the prem

covenant, in its terms purely personal, purises, the premises must prevail, applies only porting to create a restriction upon the use where the two are irreconcilable. And it of the property so long only as the vendee does not apply where it appears from the

should retain the title,

*

and as whole conveyance, or from the language of there is no personal contract relation bethe subsequent clause, that the grantor in tween the parties to this action, the plaintended thereby to qualify the granting clause, tiff is not entitled to any relief against the or where the grantee will receive an estate defendants, unless the evidence shows with of value even if the granting clause be modi reasonable certainty that the use of the lot fied as may be necessary to give effect to all for ferry purposes would materially injure parts of the deed. Barnett v. Barnett, su the remaining property of the plaintiff." pra; Faivre v. Dailey, supra; Morrison v. In the present case the clause in question, Wilson, 30 Cal. 344; Pellissier v. Corker, treating it as a covenant not to take rock 103 Cal. 518, 37 Pac. 465; 1 Devlin on Deeds, except for certain uses, expressly purports $ 215a; Bodine v. Arthur, 91 Ky. 53, 14 S. W. to bind the grantee, and also its lessees and 904, 34 Am. St. Rep. 162; Fogarty v. Stack, assigns. There is also a condition subse86 Tenn. 610, 8 S. W. 846; Bassett v. Bud quent whereby there is reserved to the granlong, 77 Mich. 338, 43 N. W. 984, 18 Am. St. tor a contingent estate in the identical rock Rep. 404; Gay y. Walker, 36 Me. 54, 58 Am. which the defendants are removing. This Dec. 734; Cooney v. Hayes, 40 Vt. 478, 94 contingent estate is a species of property and

may be transferred. Civ. Code, § 699. It recover damages for waste, or to restrain has been transferred to the plaintiff, who, it waste, cannot be maintained by one having is alleged, is now the owner thereof. There only a contingent estate, to become vested is, therefore, an existing contract relation only upon a forfeiture for a violation of a and privity of estate between the parties condition subsequent. So far as the claim to the action. The removal of this rock, of for damages for waste already committed, necessity, will materially injure the value based upon the ownership by the plaintiff of the contingent estate in the land, and, of such contingent estate, is concerned, this being removed for a forbidden use, it con

contention must be sustained. The plainstitutes sufficient ground for the interposi tiff's interest is not vested (Civ. Code, 88 tion of equity. It is our opinion that the re 693, 095); and hence he has no present strictive clause may be considered as a property in the rock removed, for the value limitation in favor of the grantors upon the of which damages can be computed, or to use of the estate granted, and against the

which he could have the right of present grantee, its lessees, and assigns, made for possession. Hunt v. Hall, 37 Me. 363; Pe the purpose of feeding and protecting the terson v. Clark, 15 Johns. (N. Y.) 205; grantors' contingent estate reserved by the Sager v. Galloway, 113 Pa. 500, 6 Atl. 209; next succeeding clause of the deed, and that

Brasher v. Macey, 3 J. J. Marsh. (Ky.) 93; it is also a personal covenant binding on the

Cannon v. Barry, 59 Miss. 289; Gordon v. successors in interest of the grantee, by

Lowther, 75 N. C. 193. But the rule is difwhich they are prohibited from removing

ferent with regard to the equitable remedy the rock for the use they are making of it; by injunction.

by injunction. The owner of a contingent and hence that they may be restrained from interest may protect that interest against so doing. We do not consider the question deterioration or destruction by enjoining a whether or not the covenant was one which

threatened waste. This is well settled by runs with the land to be material to the de

the authorities. Hayward v. Stillingfleet, 1 cision of the case.

Atk. 422; Robinson v. Litton, 3 Atk, 209; The objection that the complaint does

Brashear v. Macey, supra; Cannon v. Barnot show that the plaintiff is an heir or as

ry, supra; Miles v. Miles, 32 N. H. 147, 64 sign of the original grantors is not well

Am. Dec. 362; Petersen v. Ferrell, 127 N. taken. It alleges that the plaintiff is, and

C. 169, 37 S. E. 189; Cowand v. Meyers, 99 has been ever since November 10, 1900, the

N. C. 198, 6 S. E. 82; Gordon v. Lowther, su-. owner in fee simple of all the lands described

pra; Braswell v. Morehead, 45 N. C. 26, 57 Am. in the deed in question, "subject only to the

Dec. 586; Lewisburg University v. Tucker, 31 terms and provisions of the said deed. This

W. Va. 621, 8 S. E. 410. It comes within means that he is the owner of all the es

the rule that an injunction will be granted tate and rights reserved therein to the gran

to prevent an injury to real property which tors. IIe could only become such owner by

consists of the removal or destruction of descent or purchase from the grantors or

the substance of the estate, or where the their successors in interest; and hence he party injured cannot be adequately comis either an heir or assign. Respondents pensated in damages, or where the resultalso contend that, if the qualifying clauses

ing damages cannot be measured by any of the deed are to be considered effectual to

certain pecuniary standard. Richards v. forbid the sale or other disposition of the

Dower, 61 Cal. 63, 28 Pac. 113; Silva v. rock taken from the seven acres, they con

Garcia, 63 Cal. 592, 4 Pac. 628; More V. stitute a contract in restraint of trade,

Massini, 32 Cal. 593; 16 Am, & Eng. Ency. and are void for that reason. This claim is

of Law, 361. based on the theory, which we hold unten

With respect to the breach of the coveable, that the deed does not forbid the quar

nant not to take rock, except for the permitrying or removal of rock, but only forbids ted purposes, the breach of such a concertain uses of it after such removal. Where tract, of itself, constitutes a cause of action

for at least nominal damages. Whether, a grantor reserves a contingent estate in the land granted, and a condition or cor

in view of the nature of the plaintiff's inenant is inserted in the deed forbidding the terest, anything more can be recovered, is grantee from removing for certain uses a

a question not discussed by counsel, and, as part of such realty, the removal of which

it is not necessary to the decision of the would lessen the value of such contingent

case, we express no opinion in regard to it.

From the conclusions we have reached, estate, such condition or covenant is a lawful contract for the protection of the gran

it necessarily follows that the demurrer tor's interest, and cannot be deemed a con

should have been overruled. tract in restraint of trade.

The judgment is reversed.

By the terms of the covenant the parties are not to be restrained from engaging in the business of

On Rehearing. quarrying or selling rock in general, but BEATTY, C. J. Upon a careful recononly from taking for that purpose certain sideration of this case after rehearing orrock in which the plaintiff has an interest. dered, we find no occasion to modify our

It is further contended that an action to criginal opinion. Nor do we deem it neces

sary to undertake a discussion of the prop an estate includes the right to transfer the er construction of our Code provisions re means of protecting it. lating to covenants running with the land. Our decision rests, of course, upon the Our conclusions are not rested upon those case as presented in the record before us. provisions, and they contain nothing in If there are other facts or circumstances, consistent with what we have decided. Con- | proof of which would have a legitimate bearceding that there is no covenant running ing upon the true construction of the deed with the land in a strict legal sense, we still to the Pacific Improvement Company, nothhold that the plaintiff, as the owner of a ing we have said will prevent the defendant contingent future estate in the land, is en from alleging and proving such facts. titled in equity to enjoin a threatened de The judgment of the superior court is struction of that estate by the tenant in reversed. possession, whether such

whether such threatened destruction be total or partial. When land is SLOSS, J. I concur in the judgment. conveyed subject to a condition, breach What the plaintiff's rights would have been of which will work a forfeiture of the es if the deed had contained no provision limtate granted, the grantor retains an interest iting the grantee's right to take rock is a in the land, the value of which will be im question not involved in this case, and I expaired by the pulling down of houses, the press no opinion upon it. It is enough to cutting of timber, or the quarrying and re say that the deed under which the defendmoval of stone or any other valuable mate

ants hold did restrict the right of the granria) contained in the soil, and it would be tee and its successors in interest to do cerstrange if the law afforded him no means

tain acts destructive of the substance of the of protecting his interest. It may be that estate, and that this estate might, on breach there is a presumption in such case that

condition subsequent, revert to the there will be no breach of the condition grantor. Such restrictions may lawfully be subsequent and that there is a probability annexed to the conveyance of an interest that the estate will never be forfeited, but, less than an unqualified fee, and will be in dealing with the rights of the grantor, a

enforced at the suit of the holder of the court is bound to assume, as the parties

future estate. Blake v. Peters, 1 DeG. J. by their deed have assumed, that there may

& S. 345. be a breach of the condition, and to hold that the grantee has no right, in the mean

We concur: HENSHAW, J.; ANGELtime, to make way with the very substance

LOTTI, J.; LORIGAN, J. of the estate. If, in such case, the deed contained no express provision restraining

MCFARLAND, J. I dissent, and think the removal of the soil, or cutting of timber

that the judgment should be affirmed. or other destructive use of the land, we are clearly of the opinion that a court of equity would enjoin a threatened injury of the

(4 Cal. A. 288) magnitude alleged in this case. But here BIESCAR V. PRATT. (Civ. 275.) the deed expressly limits the purposes for

(Court of Appeal, Second District. California. which stone may be taken, and this im

Sept. 18, 1906.) poses a practical limit to the quantity that

1. SALES REMEDIES OF SELLER — RESALE – will be taken, and the right of the grantor, COLLECTION OF DRAFT DEPOSITED. or his successor, to enjoin the transgression Under Civ. Code, $ 3311, fixing the rights of of that limit is even clearer than the right

the seller on breach of contract by the buyer,

and section 1670, providing that a provision in to an injunction would have been in the

a contract for a stipulated amount as damages absence of such express provision. Of is void except where it would be difficult to course, there are exceptional cases to which

fix the actual damage, where a seller, on refusal the doctrine here asserted does not apply.

of the buyer to complete the contract, sells the

goods elsewhere at an advanced price, he is not One of them is defined in section 819 of the entitled to collect a draft deposited as part of Civil Code-the lease of a going mine or the price. quarry. But such exceptions only fortify

2. APPEAL HARMLESS ERROR AMOUNT OF

RECOVERY. the general doctrine.

Any error in not requiring a seller to reAs to the objection so strongly urged that turn to a buyer a cash deposit on the price is the stipulation in question is not binding

not prejudicial to the seller. upon the successors of the Pacific Improve

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 3, Appeal and Error, 88 4060, 4061.] ment Company, and does not inure to the successor of the grantors, our opinion re Appeal from Superior Court, Los Angeles mains unchanged, and ought not to be mis County; W. P. James, Judge. understood. The assigns of the grantee are Action by Henry Biescar against T. H. expressly named in the deed, and whatever Pratt. From a judgment in favor of defendright the grantors had to protect their in ant, and from an order denying a new trial, terest in the land passed by their convey. | plaintiff appeals. Affirmed. ance of the land to their grantee. Their Milton K. Young, for appellant. Frank estate was alienable, and the right to sell James, for respondeat.

SMITH, J. Appeal from a judgment for son Colony Co., 123 Cal. 1, 55 Pac. 713, 43 the defendant and an order denying the L. R. A. 199, 69 Am. St. Rep. 17. But the plaintiff's motion for a new trial. This is a contract there involved was for the sale of suit by the indorsee against the indorser of real estate, and contained a provision that a draft on a New York bank, the payment time should be of the essence of the contract. of which was refused by the bank under the To such cases it was held on the authorities defendant's instructions.

cited that a peculiar rule applied. It has The

case, as shown by the answer and no application to such an agreement as here findings, is: The plaintiff, by written con involved to sell personal property. tract of date December 26, 1903, agreed with

It is also objected that, upon the principle the defendant and one Bassett to sell them of the decision of the court below, defendant "the business, consisting of stock, hardware, was entitled to a return of the cash deposit. and fixtures now in building," described in This, we think, was the case, but the error the agreement, at invoice prices, etc., and the is one that the plaintiff cannot complain of. draft sued upon constituted a part of "the The judgment and order appealed from are deposit of $500" made by the vendees to the affirmed. vendor, and which, it is provided, should "be forfeited by them to said first party” in the

We concur : GRAY, P. J.; ALLEN, J. event of failure of the second parties to pay the balance of the purchase price. The de

(4 Cal. App. 294) fendant and his co-vendee, on account of cer

MEEKER V. SHUSTER et al. (Civ. 246.) tain alleged misrepresentations of the plaintiff as to the aggregate value of the property

(Court of Appeal, Third District. California. and certain other matters alleged in the

Sept. 20, 1906.)

1. JUDGMENT-RES JUDICATA. answer, refused to proceed with the contract,

A judgment in ejectment, declaring the and, on the 11th day of January, 1904, at

deed under which plaintiff claimed to be a mere tempted to rescind the contract, notifying mortgage from defendants, is res judicata in the plaintiff thereof and demanding the re an action between the same parties to have the

deed declared a mortgage, and to forcelose it. payment of the cash deposit and the sur

[Ed. Note. For cases in point, see Cent. Dig. render of the draft. The plaintiff refused to

vol. 30, Judgment, $$ 1244, 1245.] comply with this demand, but, it is alleged

2. MORTGAGES - DEED

DEED AS MORTGAGE — Eviand found, continued to carry on the busi

DENCE. ness, "and has sold much of the said stock Evidence, in an action to have a deed deof goods therein

* and has received

clared a mortgage and to foreclose it, held

sufficient to sustain a finding that it was a the price therefor and made a profit there

mortgage. on;" and finally, it is found, shortly after

Appeal from Superior Court, Sonoma Counthe commencement of this suit, sold the

ty; Emmett Seawell, Judge. whole of the stock of goods and fixtures "for

Action by M. C. Meeker against Sarah E. a price in excess of the invoice price, or

Shuster and others. Judgment for plaintiff. amount agreed to be paid therefor” by de

Defendants appeal. Affirmed. fendant and his partner. This finding is at

See 47 Pac. 580. tacked by appellant as not supported by the evidence, but we think without grounds.

J. A. and E. C. Barham and T. J. Butts, is further found "that plaintiff has not been for appellants. J. M. Thompson, for responddamaged or injured by any act of the defend ent. ant, or at all.” The court below was of this opinion (1) that the plaintiff, by continuing BUCKLES, J. This is an action to have a to carry on the business and to sell the stock, certain deed declared to be a mortgage, and and by finally selling the stock previously to foreclose the same. The defendants were unsold for a larger price than the sum agreed in possession of the land mentioned in said upon, acquiesced in the rescission of the con deed while the legal title thereto was in one tract and thus became liable to return the Aaron Barnes. The complaint alleges that on deposit; and (2) that the provision as to December 3, 1883, the said Barnes entered inforfeiture of the deposit was "void as being to a contract and bond with the Shusters an attempt to liquidate damages in an un whereby he obligated himself to convey by authorized case."

bargain and sale deed said land to the ShusIn this opinion of the court we concur. ters on or before December 3, 1893, upon the The remedies of the vendor in a case of this Shusters paying to him the sum of $11,000 kind are clearly defined. Civ. Code, $ 3311 ; in sums not less than $100 and interest at the Gay v. Dare, 103 Cal. 458, 37 Pac. 466; 2 rate of 9 per cent. per annum. This contract Benjamin on Sales, § 1117, and note. They and bond was duly recorded on the same day do not include the right to sell the goods at it was made. On October 5, 1892, the Shusan advanced price and to retain the purchase ters still owed $8,440 to said Barnes. To enmoney paid on the contract, either as liq able them to pay this debt, the plaintiff loanuidated damages (Civ. Code, $ 1670), or on ed them $8,440. The money was paid over any other ground. The appellant claims the to Barnes, the Shusters released and satisfied contrary, and cites in support of his conten the contract and bond on the records and retion the decision in Glock v. Howard & Wil quested the said Barnes to and he did make,

execute, and deliver to the said plaintiff a were intending to sell the land to Meeker. deed to said land as security for the payment The court below found that the Shusters soto him by said Shusters the said sum of licited from Meeker a loan of $8,410 for the $8,140, with interest thereon at the rate of sole purpose of paying said Barnes the sum 8 per cent. per annum, and the plaintiff gave due him, to wit, $8,440, and then agreed with the Shusters his bond for a deed for said land Meeker to repay him the said sum in 10 years; in which he agreed to convey said land to the and that no agreement was ever made by Shusters on or before 10 years from October plaintiff with said Barnes for the purchase of 5, 1892, upon the payment to him of the $8, said land. The evidence abundantly supports 410, with interest as aforesaid, by the said

these findings. Many errors are alleged in Shusters. That no part of the principal or the court's rulings on the admission of eviinterest of said debt was ever paid, and that

dence, but as all the testimony offered to at the time the suit was commenced there

which there was objection and exception was due and unpaid the sum of $18,513.26.

seems to have been properly admitted we see That in a suit in ejectment in which the plain

no necessity of taking up the time and space tiff and the defendants were the same as in

to state them here. Independent of the findthis action, tried in the superior court of

ings and judgment of the case, Meeker v. Sonoma county, a judgment was duly render

Shuster (Cal.) 47 Pac. 580, the ejectment ed and entered on December 14, 1894, by

suit heretofore referred to, we think the oral which it was adjudged that the payment of

testimony in this case with the bond and deed, the said sum of $8,440 by plaintiff to the

show the transactions to have been one of Shusters and by them to said Barnes was a

money loaning by Meeker to the Shusters, loan by plaintiff to said defendants, and that

and a giving of the deed of Barnes to Meeker the deed executed and delivered by Barnes

and the bond of Meeker to the Shusters, simto plaintiff was a mortgage to secure the pay

ply the means of securing the repayment of ment of said sum, Judgment was for de

said loan and that therefore said deed must fendants. An appeal was taken to the Su

be treated as a mortgage. Besides this the preme Court and the judgment affirmed. The answer contains a specific denial and a

suit reported in 47 Pac. 580, supra, was

a suit between the same parties in relation to setting forth the transaction of plaintiff paying over the $8,440 and the circumstances

the same property, and involved a construcof Barnes making the said deed and the plain

tion of the same deed, and we think the judgtiff making the said contract and bond to

ment in that case is conclusive that the said the Shusters,' claiming in effect that such

deed was intended as a mortgage. The judgtransaction did not constitute a mortgage,

ment roll in the case 47 Pac. 580, supra, but a sale and conveyance of title of said

was placed in evidence over the objection of land to the plaintiff, and also pleads bar un

the defendants, and this is alleged as error. der the statute of limitations. The only oral

But the very question in issue was made a testimony as to the transaction between plain

question there, and the conclusion reached in tiff and the Shusters was that given by the

that case was the same sought to be reached plaintiff. A short time before the deed was

in this case. The parties were the same there made one of the Shusters asked plaintiff to

as they are here, and the testimony here sub: buy the land, and plaintiff replied: "I do

stantially the same as in the ejectment suit. not need the land. I really have more land

McDonald v. McCoy, 121 Cal. 57, 53 Pac. 421; now than I know what to do with," but then

Wallace v. Sisson, 114 Cal. 42, 45 Pac. 1000. announced his willingness to furnish the mon

If the deed in that case, the case of ejectey to pay the debt due to Barnes. Again

ment, and the same deed that is being conwhen plaintiff and the Shusters were all to

strued here, conveyed to the plaintiff in that gether at the time the arrangements were

case the title to the land, then the defendagreed upon which were afterward carried ants would have been ejected, and that would out he says: “I told them I had the money have ended the contention as to the right to now to let them have

and I asked the land. But the court said in effect that them how they wanted to do the transaction it was a mortgage and the equity of reand they said they would take a deed from demption of the Shusters could not be foreBarnes and give me a mortgage.

closed in an ejectment suit, besides the time I then objected to taking a mortgage from for bringing an action to foreclose had not them. Then they didn't really know how to then accrued. In the ejectment suit the do it, and I said it's like this, I will let you

court found the Shusters to be the owners in have the money to pay Barnes off, and you fee of the land, and such a finding in this will discharge the record, and then I will case could not contradict the proceedings give you a bond to purchase the property, and in that case. If the deed was a mortgage will give you 10 years' time, and will pay all in that case it was a solemn finding of a taxes on the property during this 10 years' competent court when the same parties were time, and you pay me interest at the rate of before it, and when exactly the same subject8 per cent. per annum.” The testimony shows matter, the same deeds, the same contracts, that neither Meeker nor Barnes had ever been and the same bonds were being considered in possession of the said land. There is no and exactly the same question there was evidence whatever to indicate the Shusters litigated as is the paramount question here.

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