A. E. TANDY, Respondent, v. J. W. WAESCH, Defendant, Cross-Complainant and Appellant, and W. M. GARLAND et al., Defendants and Respondents, 154 Cal. 108

HENSHAW, J. Plaintiff sued to recover the sum of one thousand dollars, paid on account of the purchase price of a piece of land under contract with defendant, whereby defendant agreed to convey the land by a title free and clear of all encumbrances.

Pie averred that defendants’ title was encumbered by restrictions, reservations, and covenants as follows :— “It is hereby covenanted and agreed, by and between the parties hereto, and it is part of the consideration of this conveyance, that no main building shall be erected or suffered to remain upon the premises hereby conveyed that is not reasonably worth one thousand dollars for one story or fifteen hundred dollars for two stories, and said main building shall be erected before any other building on said property. “There is hereby expressly reserved and excepted from the operation of this deed to the parties of the first part, their successors, heirs or assigns forever, the right of way for, and the right to construct, lay down, and maintain, pipes, ditches, and zanjas for irrigation purposes upon, through and across the parks, streets, and avenues in said city of Redondo Beach, said several rights of way and exceptions to be made of such sizes, quantities and dimensions as may be reasonably required for the several and respective uses for which the same are severally reserved.” It was alleged that a reasonable time had been given to remove these encumbrances, and that they had not been removed ; and, indeed, upon the trial, it was conceded that they were still in existence.

Defendant pleaded by answer and cross-complaint, calling in as defendants to his cross-complaint, besides the plaintiff Tandy, W. M. Garland, and E. T. Ames. Trial was had, judgment passed for plaintiff Tandy, and from that judgment and the order of the court denying defendant’s motion for a new trial, he appeals. His principal contention upon appeal seems to be that as it was disclosed and known to him that Tandy was acting as agent, and that the defendant Garland was principal, the action should have been brought by Garland, and cannot be maintained in the name of Tandy.

Tandy, however, was a proper party plaintiff. To the general rule laid down in

section 367, of the Code of Civil Procedure, that every action must be prosecuted in the name of the real party in interest, there are certain exceptions specified in

section 369 of the Code of Civil Procedure. That

section authorizes the trustee of an express trust to sue without joining the beneficiary and declares that a person with whom, or in whose name a contract is made for the benefit of another, is a trustee of an express trust within the meaning of this section. The contract having been made in Tandy’s name for the benefit of Garland, Tandy thus became the trustee of an express trust and entitled to maintain the action. (See Walker v. McCusker, 71 Cal. 594, [12 Pac. 723]; Giselman v. Starr, 106 Cal. 657, [40 Pac. 8]; Los Robles Water Co. v. Stoneman, 146 Cal. 204, [79 Pac. 880]; Anglo-Californian Bank v.

Cerf, 147 Cal. 384, [81 Pac. 1077]; Pomeroy’s Code Remedies, secs. 103, 105; Bliss on Code Pleadings, sec. 57.) The restrictions, reservations, and covenants constituted encumbrances upon the title of defendant, which, not being removed, justified plaintiff in seeking a recovery of his partial payment under defendant’s contract to convey to him a title “free and clear of all encumbrances.” Indeed, this proposition is not seriously disputed, but if it were it finds abundant support. (Quatman v. McCray, 128 Cal. 285, [60 Pac. 855]; Whelan v. Rossiter, 1 Cal. App. 701, [82 Pac. 1082]; Goldstein v. Hensley, 4 Cal.

App. 444, [88 Pac. 507]; Wetmore v. Bruce, 118 N. Y. 319, [23 N. E. 303]; Ayling v. Kramer, 133 Mass. 12; Brewster on Conveyancing, sec. 201; Warvell on Vendors, sec. 312.) For the foregoing reasons the judgment and order appealed from are affirmed. Lorigan, J., and Shaw, J., concurred.