[Civ. No. 2916. Second Appellate District, Division Two.-July 10, 1919.]

TITLE GUARANTEE & TRUST COMPANY (a Corporation), Appellant, v. II. L. GARROTT, Respondent.

[1] DEEDS-DEFEAT OF ESTATE CONVEYED-CONDITION SUBSEQUENT.Where it clearly appears by a deed that it was the intention of the parties that, upon a breach of the restriction, the estate conveyed to the grantee should be defeated and should return to the grantor, the restriction is a condition subsequent and not a cove

nant.

[2] ID. INHIBITION OF CONVEYANCE TO CERTAIN NATIONALITIES-UNLAWFUL RESTRAINT ON ALIENATION.-A condition in a deed providing for a forfeiture of the title conveyed in the event that the vendee, or her assignees, should lease or sell the property to any person of African, Chinese, or Japanese descent, prior to a given date, violates the common-law rule, of which section 711 of the Civil Code is declaratory, that "conditions restraining alienation, when repugnant to the interest created, are void."

[3] ID. ANY RESTRAINT ON ALIENATION VOID.-Any restraint on alienation, either as to persons or time, is invalid.

[4] ID. FORM OF RESTRAINING PROVISION IMMATERIAL.-A provision in a deed restraining alienation, either as to persons or time, is void, whether it be regarded as a condition subsequent or as a limitation over-a limitation conditioned upon the lease or sale of the premises to persons of the proscribed class-or as a covenant running with the land.

APPEAL from a judgment of the Superior Court of Los Angeles County. John W. Shenk, Judge. Affirmed.

The facts are stated in the opinion of the court.

Wm. T. Blakely for Appellant.

Willis O. Tyler for Respondent.

Arthur Crum, Amicus Curiae.

1. Validity of conditions and restrictions in deeds, note, 95 Am. St. Rep. 215.

3. Validity of partial or limited restraint on alienation of feesimple estate, notes, 7 Ann. Cas. 319; Ann. Cas. 1916D, 1254.

FINLAYSON, P. J.-This is an appeal from a judgment against plaintiff after a demurrer to its complaint had been sustained without leave to amend. The appeal involves the validity of a condition in a deed providing for a forfeiture of the title conveyed in the event that the grantee should lease or sell to persons of African descent prior to January 1, 1925.

Plaintiff, being the owner of 127 lots in the Angelus Park Tract, in the county of Los Angeles, conveyed one of the lots to Pauline Kasanofska, under whom defendant claims. title, by a deed the provisions of which, after the granting clause, so far as material to the question presented, are as follows: "It is provided, however, and the said party of the second part, [the grantee] by the acceptance hereof, for herself, her heirs and assigns, hereby covenants and agrees to and with the said party of the first part, [the grantor] its successors and assigns, as follows: That neither the said party of the second part, nor her heirs or assigns, shall or will... lease or sell any portion of said premises to any person of African, Chinese or Japanese descent, and that if at any time the said party of the second part, her heirs, assigns or successors in interest, or those holding or claiming thereunder, shall violate any of the provisions herein named, whether directly or under some evasive guise, thereupon the title hereby granted shall revert to and be vested in the said party of the first part, its successors and assigns, and its successors and assigns shall be entitled to the immediate possession thereof. Which covenants shall be construed to be covenants running with the land, but shall cease and terminate at option of the owner, for the time being, after January 1, 1925." The deed, which bore date November 12, 1910, was duly recorded on November 26, 1910. Thereafter, by mesne conveyances, the lot was conveyed to defendant, a negro of African descent, subject to the covenants and conditions in the deed to Pauline Kasanofska. Prior to and since the grant of the lot to Pauline Kasanofska, plaintiff, by deeds containing similar covenants or conditions, has conveyed many of the other lots to various persons, who have erected homes on their respective lots and have complied with the conditions contained in their deeds. The whole tract is now thickly settled with persons of the Caucasian race. Claiming that the provision inhibiting a conveyance

to persons of African descent created a condition subsequent, that, by reason of its violation, the fee conveyed to defendant's predecessor, Pauline Kasanofska, has been forfeited, and that, therefore, it is entitled to re-enter for condition broken and to a reconveyance under section 1109 of the Civil Code, plaintiff brought this action, praying the court to compel a reconveyance and that it be placed in possession.

[1] We think the provision in the deed relied upon by plaintiff as the basis of its claim for relief created a condition subsequent and not a covenant. Where, as here, it clearly appears by the deed that it was the intention of the parties that, upon a breach of the restriction, the estate conveyed to the grantee should be defeated and should return to the grantor, the restriction is a condition subsequent. (Ball v. Miliken, 31 R. I. 36 [Ann. Cas. 1912B, 30, 37 L. R. A. (N. S.) 623, 76 Atl. 789].) But whether the provision be construed as a condition or a covenant, we think it is a nullity and that the demurrer to the complaint very properly was sustained.

We do not base our conclusion upon any supposed constitutional right of respondent; we do not think that the condition in the deed violates any provision of the state or federal constitution. Upon this aspect of the case we agree with what is said by the Louisiana supreme court in Queensborough Land Co. v. Cazeaux, 136 La. 724, [Ann. Cas. 1916D, 1248, L. R. A. 1916B, 1201, 67 South 641]. The fourteenth amendment, in so far as it prohibits any abridgment of the privileges or immunities of citizens of the United States and guarantees the equal protection of the laws to all persons, addresses itself to the state government and its instrumentalities, to its legislative, executive, and judicial authorities, and not to contracts between individuals. It is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. (Civil Rights Cases, 109 U. S. 18, [27 L. Ed. 835, 3 Sup. Ct. Rep. 18, see, also, Rose's U. S. Notes].) The fourteenth amendment, it is true, applies to the judicial as well as the legislative department of the state government. But the judiciary does not violate this provision of the federal constitution merely because it sanctions discriminations. that are the outgrowth of contracts made by individuals. A different question would be presented if the court, while sanetioning such a provision against persons of African descent

as we find in the deed in question here, were subsequently to hold to be invalid a similar provision directed against Hindus, Cingalese, and Maoris, or any other class of persons except negroes. The equal protection clause of the fourteenth amendment makes but one demand upon the state, and gives to the state but one right. It is that the state shall make, execute, and interpret its laws without discrimination. It must not grant rights to one which, under similar circumstances, it denies to another. Upon this phase of the question see the note to Queensborough Land Co. v. Cazeaux, supra, L. R. A. 1916B, p. 1208.

[2] We think, however, that the condition against leasing or selling to persons of African descent violates the commonlaw rule of which section 711 of the Civil Code is declaratory: "Conditions restraining alienation, when repugnant to the interest created, are void."

The deed is not set forth in full in the complaint. We shall assume, however, as counsel themselves have in their briefs, that the deed to Pauline Kasanofska, both in its granting clause and its habendum clause, conveyed to the grantee the full fee title, so that the interest created by the deed was title in fee simple absolute. This being so, the real question is whether the condition forbidding alienation to persons of African descent at any time before January 1, 1925, is such a restraint on alienation as to be repugnant to the interest created by the granting and habendum clauses, within the meaning of section 711, or of the common law of which that section is declaratory.

Two cases, and two cases only, have come under our notice wherein the courts have passed directly upon a condition in a deed imposing a restraint on alienation such as that now before us. Those two cases are Queensborough Land Co. v. Cazeaux, supra, and Koehler v. Rowland, 275 Mo. 573, [205 S. W. 217]. In each of these cases it was held that a condition in a deed providing for forfeiture in case the premises should be sold or leased to a negro is not an unlawful restraint upon the power of alienation. As we are constrained to disagree with each of these cases, a somewhat more elaborate presentation of the reasons for our conclusion is demanded than ordinarily would suffice.

Ever since the statute quia emptores, the tying up of real property has been regarded as an evil. Prior to that

statute, restraints upon alienation of lands held in fee simple were practically an inseparable part of the ancient feudal system. All land in the kingdom was holden mediately or immediately of the king, styled the lord paramount; and the great lords, holding immediately under the king, when they granted portions of their lands to others, were still tenants with respect to the king, and were called mesne, or middle, lords. The lord had an interest in having a brave and loyal tenant, capable of rendering military service; and, on the other hand, the tenant was interested in living under the military chief of his own choice and adoption. The result was that certain reciprocal rights and incidents sprung out of these feudal tenures, among which were fealty and escheat. The tenant owed fealty to his lord; escheat was the reversion of the estate on a grant in fee simple upon a failure of heirs of the owner. These grants by the mesne lords were called subinfeudations. The grantee, owing fealty to his lord and grantor, could not alienate his land without the license or consent of his lord, who was the owner of the reversionary interest contingent upon the death of the grantee without heirs. All this was changed in the reign of Edward I by the statute quia emptores, which provided "that from henceforth it shall be lawful for any freeman to sell at his own pleasure his lands and tenements, or part of them, so that the feoffee shall hold the same lands and tenements of the chief lord of the same fee, by such service and customs as the feoffor held before." By declaring that every freeman might sell his lands at his own pleasure, parliament, by one stroke of the pen, broke down the last remnant of the feudal restrictions upon alienation that formerly had prevented the tenant from selling his land without. the license of his grantor and feudal lord. By chang ing the tenure from the immediate to the paramount lord, the king, the statute took away the reversion from the immediate lord, and thus deprived him of the power of imposing any restraint, by contract or condition, expressed in the deed of conveyance.

Whether the statute quia emptores ever became effectual in any of the United States by express or implied adoption. or as a part of the common law, we need not stop to inquire, since it is clear that with us no such statute is