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*Note: The following opinion was edited by AudioCaseFiles' staff.
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Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano
64 Cal. Rptr. 816
Court of Appeal of California, Fifth District, 1967

Opinion by GARGANO.
This action was instituted by appellant, a nonprofit corporation, to quiet its title to a parcel of real property which it acquired on April 6, 1950, by gift deed from James V. Toscano and Maria Toscano, both deceased. Respondents are the trustees and administrators of the estates of the deceased grantors and appellant sought to quiet its title as to their interest in the land arising from certain conditions contained in the gift deed.

The matter was submitted to the court on stipulated facts and the court rendered judgment in favor of respondents. However, it is not clear from the court's findings of fact and conclusions of law whether it determined that the conditions were not void and hence refused to quiet appellant's title for this reason, or whether it decided that appellant had not broken the conditions and then erroneously concluded that "neither party has a right to an anticipatory decree" until a violation occurs. Thus, to avoid prolonged litigation the parties have stipulated that when the trial court rendered judgment refusing to quiet appellant's title it simply decided that the conditions are not void and that its decision on this limited issue is the only question presented in this appeal. We shall limit our discussion accordingly.

The controversy between the parties centers on the language contained in the habendum clause of the deed of conveyance which reads as follows: "Said property is restricted for the use and benefit of the second party, only; and in the event the same fails to be used by the second party or in the event of sale or transfer by the second party of all or any part of said lot, the same is to revert to the first parties herein, their successors, heirs or assigns." Respondents maintain that the language creates a fee simple subject to a condition subsequent and is valid and enforceable. On the other hand, appellant contends that the restrictive language amounts to an absolute restraint on its power of alienation and is void. It apparently asserts that, since the purpose for which the land must be used is not precisely defined, it may be used by appellant for any purpose and hence the restriction is not on the land use but on who uses it. Thus, appellant concludes that it is clear that the reversionary clause was intended by grantors to take effect only if appellant sells or transfers the land.

Admittedly, the condition of the habendum clause which prohibits appellant from selling or transferring the land under penalty of forfeiture is an absolute restraint against alienation and is void. The common law rule prohibiting restraint against alienation is embodied in Civil Code section 711 which provides: "Conditions restraining alienation, when repugnant to the interest created, are void." However, this condition and the condition relating to the use of the land are in the disjunctive and are clearly severable. In other words, under the plain language of the deed the grantors, their successors or assigns may exercise their power of termination "if the land is not used by the second party" or "in the event of sale or transfer by second party." Thus, the invalid restraint against alienation does not necessarily affect or nullify the condition on land use.

The remaining question, therefore, is whether the use condition created a defeasible fee as respondents maintain or whether it is also a restraint against alienation and nothing more as appellant alleges. Significantly, appellant is a non-profit corporation organized for lodge, fraternal and similar purposes. Moreover, decedent, James V. Toscano, was an active member of the lodge at the time of his death.

In addition, the term "use" as applied to real property can be construed to mean a "right which a person has to use or enjoy the property of another according to his necessities." Under these circumstances it is reasonably clear that when the grantors stated that the land was conveyed in consideration of "love and affection" and added that it "is restricted for the use and benefit of the second party" they simply meant to say that the land was conveyed upon condition that it would be used for lodge, fraternal and other purposes for which the non-profit corporation was formed. Thus, we conclude that the portion of the habendum clause relating to the land use, when construed as a whole and in light of the surrounding circumstances, created a fee subject to a condition subsequent with title to revert to the grantors, their successors or assigns if the land ceases to be used for lodge, fraternal and similar purposes for which the appellant is formed. No formal language is necessary to create a fee simple subject to a condition subsequent as long as the intent of the grantor is clear. It is the rule that the object in construing a deed is to ascertain the intention of the grantor from words which have been employed and from surrounding circumstances.

It is of course arguable, as appellant suggests, that the condition in appellant's deed is not a restriction on land use but on who uses it. Be this as it may, the distinction between a covenant which restrains the alienation of a fee simple absolute and a condition which restricts land use and creates a defeasible estate was long recognized at common law and is recognized in this state. Thus, conditions restricting land use have been upheld by the California courts on numerous occasions even though they hamper, and often completely impede, alienation.

Moreover, if appellant's suggestion is carried to its logical conclusion it would mean that real property could not be conveyed to a city to be used only for its own city purposes, or to a school district to be used only for its own school purposes, or to a church to be used only for its own church purposes. Such restrictions would also be restrictions upon who uses the land. And yet we do not understand this to be the rule of this state. For example, in Los Angeles Inv. Co. v. Gary, supra, 181 Cal. 680, land had been conveyed upon condition that it was not to be sold, leased, rented or occupied by persons other than those of Caucasian race. The court held that the condition against alienation of the land was void, but upheld the condition restricting the land use. Although a use restriction compelling racial discrimination is no longer consonant with constitutional principles under more recent decisions, the sharp distinction that the court drew between a restriction on land use and a restriction on alienation is still valid. For further example, in the leading and often cited case of Johnston v. City of Los Angeles, 176 Cal. 479 [168 P. 1047], the land was conveyed to the City of Los Angeles on the express condition that the city would use it for the erection and maintenance of a dam, the land to revert if the city ceased to use it for such purposes. The Supreme Court held that the condition created a defeasible estate, apparently even though it was by necessity a restriction on who could use the land.

For the reasons herein stated, the first paragraph of the judgment below is amended and revised to read:

"1. That at the time of the commencement of this action title to the parcel of real property situated in the City of Los Banos, County of Merced, State of California, being described as:

Lot 20 Block 72 according to the Map of the Town of Los Banos

was vested in the Mountain Brow Lodge No. 82, Independent Order of Odd Fellows, subject to the condition that said property is restricted for the use and benefit of the second party only; and in the event the same fails to be used by the second party the same is to revert to the first parties herein, their successors, heirs or assigns."

As so modified the judgment is affirmed. Respondents to recover their costs on appeal.

DISSENT: STONE, J. I dissent. I believe the entire habendum clause which purports to restrict the fee simple conveyed is invalid as a restraint upon alienation within the ambit of Civil Code, section 711. It reads: "Said property is restricted for the use and benefit of the second party, only; and in the event the same fails to be used by the second party or in the event of sale or transfer by the second party of all or any part of said lot the same is to revert to the first parties herein, their successors, heirs or assigns."

If the words "sale or transfer," which the majority find to be a restraint upon alienation, are expunged, still the property cannot be sold or transferred by the grantee because the property may be used by only the I.O.O.F. Lodge No. 82, upon pain of reverter. This use restriction prevents the grantee from conveying the property just as effectively as the condition against "sale or transfer . . . of all or any part of said lot."

Certainly, if we are to have realism in the law, the effect of language must be judged according to what it does. When two different terms generate the same ultimate legal result, they should be treated alike in relation to that result.

Section 711 of the Civil Code expresses an ancient policy of English common law. The wisdom of this proscription as applied to situations of this kind is manifest when we note that a number of fraternal, political and similar organizations of a century ago have disappeared, and others have ceased to function in individual communities. Should an organization holding property under a deed similar to the one before us be disbanded one hundred years or so after the conveyance is made, the result may well be a title fragmented into the interests of heirs of the grantors numbering in the hundreds and scattered to the four corners of the earth.

In any event, it seems to me that quite aside from section 782, the entire habendum clause is repugnant to the grant in fee simple that precedes it. I would hold the property free from restrictions, and reverse the judgment.

This case is in these books

• Property
• Dukeminier, Krier, Alexander, Schill
• 6th Edition