SARAH PREY, Respondent, v. W. H. STANLEY, Appellant, 110 Cal. 423

Britt, C. Action to quiet title to a parcel of land in the city and county of San Francisco. Plaintiff is the wife of one Oscar Prey; defendant is her brother; she claims title through Mary J. Stanley, the mother of herself and defendant, in virtue of a deed of the premises executed to her by said Mary J. Stanley, February 29, 1892, in consideration of love and affection. Judgment was for plaintiff. 1.

On November 29, 1892, plaintiff filed in the recorder’s office a declaration of homestead on the premises for the joint benefit of herself and her said husband; this action was begun June 15, 1893; it is alleged in the complaint that the land in question is plaintiff’s separate property. Appellant maintains that there is a defect of parties in that said Oscar Prey should have been joined with his wife as a plaintiff (Code Civ.

Proc., sec. 370); the ground assigned for this view is that upon the declaration of the homestead the land ceased to be her separate property and became the joint property of herself and her husband. Conceding, for present purposes only, that the declaration of homestead transmuted the title into a joint tenancy, as claimed by appellant, it is yet not perceived that the result contended for would follow; whatever interest the wife has in the land was acquired by gift, and is, therefore, her separate property (Civ.

Code, sec. 162); for the enforcement or protection of such right, even if that of a joint tenant only, she is now permitted to sue alone (Code Civ. Proc., secs. 370, 384); and as against one having no interest in the land her right for the purposes of this action extends to the whole thereof. The husband was not a necessary party. 2. On January 25, 1892, one Murphy conveyed certain land, including that in suit, to said Mary J. Stanley, in consideration of the sum of two thousand five hundred dollars, which was paid by the defendant, W. H.

Stanley; the transaction being intended as a gift from the latter to his mother. Thereafter, on February 23, 1892, a contract in writing was executed, naming as the parties thereto said Mary J. Stanley and W. H. Stanley, and reciting such acquisition of the land by her, and that the purchase money for the same was furnished as a gift by said W. H. Stanley. It then set forth a covenant on the part of said Mary J. that no part of such land “ shall be sold or conveyed . . . . without the consent ” of said W. H.

Stanley; that he was to be known and considered as the manager and superintendent of the land described for the interest and benefit of said Mary J., to whom was to be paid all the income thereof; and that, in case of her death, the property should be divided between her lawful heirs, “ who are now at this time Sarah Prey and W. H. Stanley.” This instrument was signed by the plaintiff as well as by Mary J. and W. H. Stanley, though plaintiff was not named a party in the body thereof. Mary J. Stanley made the deed of February 29, 1892, to the plaintiff without defendant’s consent.

It is argued that the contract of February 23d operated to make W. H. Stanley a trustee of the title for his mother, but there is nothing in its language to warrant this contention; to say that he should be manager and superintendent for her benefit, no more made him a trustee having an interest as such in the land, than if he had been named her steward, collector, or attorney. The question, then, is, whether the agreement of Mary J. Stanley, not to convey the land without her son’s consent, was valid; if it was, plaintiff has no title; if it was not, her title is clear as against defendant.

Conditions in restraint of alienation, when repugnant to an interest created in property, are void. (Civ. Code, sec. 711.) In consonance with this principle, it was held in Murray v. Green, 64 Cal. 363, that a clause in a deed restraining the grantee from conveying without the grantor's consent, the title granted being the fee, was repugnant to the interest created by the deed, and void. In the present case, the restriction is not contained as a condition in the instrument by which the estate passed to Mary J. Stanley, but occurs in the form of a covenant on her

part in a separate contract, which, as appears from its recitals, was intended to operate as a qualification of the absolute conveyance from Murphy to her. But the rule does not depend upon the mere form in which the restraint is imposed. It avoids, as well, covenants of the grantee against alienation as conditions of like nature imposed by the grantor; such covenants, if not within the letter of

section 711 of the Civil Code, are yet obnoxious to the policy of which that

section is a partial expression. (Greenhood on Public Policy, 606, note 2, et seq; Hunt v. Wright, 47 N. H. 400; 93 Am. Dec. 451, and cases cited.) The parties to the contract of February 23, 1892, seem to have made the mistake of leaving the absolute title in Mrs. Stanley, and at the same time attempting to destroy an inseparable incident of such title. They could not thus create a mongrel estate unknown to the law, and the attempt was abortive. (Murray v. Green, 64 Cal. 367; Doebler’s Appeal, 64 Pa. St. 9; Mandlebaum v. McDonell, 29 Mich. 92; 18 Am.

Rep. 61.) It follows, also, that the claim of appellant that plaintiff is estopped, by reason of her signature, to the contract of February 23, 1892, cannot be sustained; the restraint sought to be imposed on Mary J. Stanley’s power of alienation being void, as agairst the policy of the law, the plaintiff’s assent thereto could not estop her to allege its invalidity. (Greenhood on Public Policy, 115; 2 Parsons on Contracts, 789, note i.) No other points made require special uotice. The judgment and order appealed from should be affirmed. Belcher, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed. McFarland, J., Henshaw, J., Temple, J. Hearing in Bank denied. Beatty, C. J., dissented from the order denying a hearing in Bank.