Opinion
Hearing Granted Feb. 3, 1944.
Appeal from Superior Court, Los Angeles County; Frank C. Collier, Judge.
Action by Hazel Fairchild and others against Ross H. Raines and others to enjoin certain defendants from using and occupying a certain lot and to enjoin certain other defendants from permitting their codefendants to occupy such lots. From a judgment for plaintiffs, the defendants appeal.
Judgment affirmed. COUNSEL
Lester V. Peterman, of Pasadena, for appellants.
McEachern & Ritchie, of Pasadena, for respondents.
OPINION
McCOMB, Justice.
From a judgment in favor of plaintiffs after trial before the court without a jury in an action to enjoin defendants (a) Ross H. Raines and Helen Louise Raines (Negroes) from using and occupying lot 43 of the Palisades Tract as per map recorded in Book 8, page 40 of Maps, records of the County Recorder of Los Angeles County, and (b) Frank F. Winsell and Mary Winsell from permitting their codefendants to occupy the aforesaid property, defendants appeal.
These are the undisputed facts:
On or about March 21, 1927, plaintiffs and certain other persons including Harry E. Mayhew and Dorothy Mayhew entered into an agreement concerning the parcel of property above mentioned, and lots adjacent thereto. So far as material here the agreement which was placed of record in the Office of the County Recorder of Los Angeles County on April 14, 1927, read thus:
"Witnesseth:
"That, Whereas, each of the parties hereto is the owner of, or a contract purchaser of, the real property designated and particularly described opposite their respective signatures, all of which said real property is situated in the City of Pasadena, County of Los Angeles, State of California, and within a certain district therein which includes certain lots in the said City of Pasadena described as Lots 3 to 18, both inclusive, 29 to 51, both inclusive, of ‘The Palisades’, as per map recorded in Book 8, page 40 of Maps, Records of said Los Angeles County; and
"Whereas, the several parcels of land within the above described area which are now occupied, are occupied with only a few exceptions exclusively by persons of the White or Caucasion race; and
"Whereas, it is for the mutual benefit and advantage of each of the parties hereto, and for the benefit and advantage of each and every parcel of land within the district aforesaid, whether the same are now occupied or not, that each and every parcel of land within said area shall be limited and restricted to occupancy by, and that the same shall be occupied exclusively by persons of the White or Caucasian race;
"Now, therefore, in consideration of the premises, and the advantages to be derived by each of the parties hereto by the making of this agreement, and further in consideration of the benefits which will accrue to the real property of the undersigned, respectively, or in which they are respectively interested: It is Hereby Mutually Covenanted and Agreed by and between the parties hereto that up to and including the first day of January, 1950, each and every of the lots or parcels of land designated and particularly described opposite the respective signatures of the parties hereto shall be subject to the following restrictions and covenants which shall apply to and be binding upon the parties hereto, their and each of their heirs, devisees, executors, administrators, successors and assigns, namely:
"That no portion or part of said lots or parcels of land shall be used or occupied by, or be permitted to be used or occupied by, any person not of the White or Caucasian race. That no person shall live upon said property at any time whose blood is not entirely that of the Caucasian race, but if persons not of the Caucasian race are kept thereon by such Caucasian occupant strictly in the capacity of servants or employees of such occupant, such circumstances shall not constitute a violation of this covenant."
Of the thirty-nine lots mentioned in the agreement, five for various reasons were not subject to the restrictive covenant contained in the agreement.
Through mesne conveyances defendants Winsell acquired title to lot 43 on March 14, 1940. The deed of conveyance to them made no mention of the race restrictions contained in the agreement nor did they have actual knowledge of said restrictions.
On or about June 4, 1942, defendants Raines, without actual knowledge of the above-mentioned race restrictions, entered into an agreement to purchase from their co-defendants lot 43, and on or about the last-mentioned date defendants Raines entered into the possession and occupancy of said lot.
There are six questions necessary for us to determine which will be stated and answered hereunder seriatim.
First: Did the race restrictions in the above agreement bind the lots of the owners who had signed the agreement since some of the lots embraced within the scheme of the restrictions were not bound by the restrictive covenant?
This question must be answered in the affirmative, and is governed by the rule which has been established in California since 1919, that a provision in an agreement that property shall not be used or occupied by a person other than of the Caucasian race is valid and enforceable. (Wayt v. Patee, (1928), 205 Cal. 46, 49, 269 P. 660; Janss Investment Co. v. Walden, (1925), 196 Cal. 753, 754, 239 P. 34; Los Angeles Investment Co. v. Gary, (1919), 181 Cal. 680, 682, 186 P. 596, 9 A.L.R. 115; Littlejohns v. Henderson, (1931), 111 Cal.App. 115, 118, 295 P. 95).
The provision here in question is almost identical with the covenants upheld by our Supreme Court in the cases just cited.
The cases of Foster v. Steward, 134 Cal.App. 482, 25 P.2d 497, and Oberwise v. Poulos, 124 Cal.App. 247, 12 P.2d 156, are factually distinguishable from the present case. In the Foster case the trial court found supported by substantial evidence that the race restrictions were not to become effective until all of the lot owners in the area described in the agreement had executed it, and that all of the lot owners had not signed the agreement. In the Oberwise case the trial court found supported by substantial evidence that the race restrictions were not to become effective until 140 lot owners had executed the agreement, and that such minimum number of lot owners had not in fact signed the agreement. The same factual situation exists in Thornhill v. Herdt, Mo.App. 130 S.W.2d 175, 179.
In the instant case there is no requirement in the agreement that any number of lot owners execute it prior to the race restrictions becoming effective so far as the subscribing property owners are concerned. On the contrary, from the very language of the agreement, it appears that it was to be effective "by and between the subscribers" thereto.
Second: Had there been such a change in the character of the surrounding neighborhood as to prevent equity from enforcing the race restrictions by granting injunctive relief?
This question must be answered in the negative. The trial court found supported by substantial evidence that there had been "no change in Negro occupancy as to any of the lots described" in the agreement above set forth except in the single instance of lot 43 which is the subject of the present controversy. In view of the trial court’s finding the rule announced in the following cases is inappplicable: Hurd v. Albert, 214 Cal. 15, 3 P.2d 545, 76 A.L.R. 1348; Friesen v. City of Glendale, 209 Cal. 524, 288 P. 1080; Bryant v. Whitney, 178 Cal. 640, 174 P. 32; Letteau v. Ellis, 122 Cal.App. 584, 10 P.2d 496; and Jewett v. Albin, 90 Cal.App. 535, 266 P. 329.
The foregoing cases are all predicated upon a finding that the character of the property involved had changed materially subsequent to the date of the restrictive agreement.
Third: Did defendants acquire their interest in lot 43 as bona fide purchasers without notice of the race restrictions contained in the above mentioned agreement?
This question must be answered in the negative. There was received in evidence a certified copy of the agreement of March 21, 1927, which had been duly recorded April 14, 1927, in the Official Records of the Office of the County Recorder of Los Angeles County.
There is no merit in defendants’ contention that the deed was defectively recorded for it appears from an examination of the instrument received in evidence that on March 26, 1927, W. A. Goodwin and Emma Goodwin, two of the signers of the agreement, appeared before Harry E. Mayhew, a notary public, that he duly acknowledged their signatures to the agreement here involved, and that subsequent thereto the agreement was duly placed of record. The rule is established that where an instrument affecting the title to real property is duly placed of record such recordation carries constructive notice of the contents of such instrument to subsequent purchasers of the real property affected by the recorded agreement. Civil Code, § 1213.
It is likewise established that where a purchaser has constructive notice of the contents of a recorded instrument there is no need to prove that he had actual notice of the same. (Christy v. Dana, 42 Cal. 174, 179.)
From the foregoing, it is clear that defendants had notice of the race restrictions contained in the agreement of March 21, 1943, when they acquired their interest in lot 43.
Fourth: Did the complaint state a cause of action because it failed to allege that the agreement of March 21, 1927, was supported by a fair, just and adequate consideration?
It is unnecessary for us to consider this question for the reason that Article VI, section 4 1/2 of the Constitution of the State of California provides that a judgment shall not be reversed "for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice."
In the instant case, irrespective of any allegation in the complaint, the evidence discloses that the agreement was fair, just and supported by an adequate consideration, to wit, the mutual promises of the parties to the agreement.
Fifth: Did the trial court have jurisdiction to enjoin defendants Winsell from permitting their co-defendants to occupy and use or live upon lot 43?
This question must be answered in the affirmative. Defendants Winsell having acquired lot 43 with notice of the race restrictions agreement, stood in the position of a party to the agreement and in accordance with the authorities cited under the first question, supra, were subject to an order enjoining them from violating the terms of the agreement. (Wayt v. Patee, supra, 205 Cal. at page 49, 269 P. 660.)
Sixth: Was there substantial evidence to sustain the trial court’s finding that (1) those who executed the agreement of March 21, 1927, were owners of the property set opposite their respective names, (2) the agreement was duly executed by the parties whose names appear thereon and that their signatures were duly acknowledged by a notary public (3) the agreement was duly placed of record, (4) defendants had notice of the race restrictions agreement, and (5) plaintiffs suffered damage by reason of defendants Raines occupying lot 43?
This question must likewise be answered in the affirmative. The certified copy of the agreement of March 21, 1927, which was before the trial court, of itself constitutes substantial evidence to support items 1, 2, 3, and 4. A duly qualified expert on real estate values testified that the value of surrounding property dropped at least fifty per cent when a lot was occupied by a Negro, and that the occupancy of lot 43 by defendants Raines would have such effect on other lots described in the agreement here under discussion. This testimony supports item 5.
For the foregoing reasons the judgment is affirmed.
W. J. WOOD, J., concurs.
MOORE, Presiding Justice.
I concur. Prior to June 4, 1942, Ross Raines and his wife, Negroes, purchased lot 43 and occupied it. Before that event, the owners of that lot, one Harry E. Mayhew and wife, had executed and recorded an agreement with other owners of lots in the same tract whereby they covenanted that no portion of their lot 43 should be occupied by any person not of the Caucasian race prior to the second day of January, 1950. That was a valid covenant and was binding upon the contracting parties. Los Angeles Investment Co. v. Gary, 181 Cal. 680, 186 P. 596, 9 A.L.R. 115. Inasmuch as the agreement was recorded in the proper records, appellants had constructive notice of it. Wayt v. Patee, 205 Cal. 46, 49, 269 P. 660. Having made the purchase with notice of the agreement appellants are bound to the same extent as were the Mayhews who had agreed to restrict the occupancy of the lot to members of the Caucasian race. Pomeroy’s Equity Jurisprudence, 4th Edition, Sec. 688.
Likewise were appellants, Winsell, under obligation to refrain from permitting the lot to be used or occupied by a person not of the Caucasian race. McBride v. Freeman, 191 Cal. 152, 215 P. 678. They made their contract and it cannot be violated merely because they now desire to be relieved therefrom. Obligations solemnly undertaken cannot be ignored by a party thereto, merely because he has changed his views or because it may have become profitable for him to do so.
Litigants should ever be mindful that the sanctity of contracts intelligently and solemnly executed is one of the most sacred of our constitutional guaranties. To gain effective relief from the hardship realized by a contracting party on his discovery of a new and detrimental significance of his commitment his only available remedial source is the lawmakers, not the courts. For us to ignore the decisions of the Supreme Court and the most vital principles of the law of contracts would be not only base but stupid.