Opinion
Rehearing denied.
Appeal from a judgment of the Superior Court of Fresno County, and from an order refusing a new trial.
COUNSEL:
The agreement, in order to entitle it to be recorded, so as to impart notice to subsequent purchasers of the land, was not required to be acknowledged by the plaintiff. (Spect v. Gregg , 51 Cal. 198; Civ. Code, secs. 1158, 1161.)
George E. Church, for Appellant.
Wharton & Short, for Respondent.
The agreement should have heen acknowledged by the plaintiff to entitle it to be recorded, so as to impart notice. (Racouillat v. Sansevain , 32 Cal. 276; McMinn v. O'Connor , 27 Cal. 238.) The covenants of Easton were purely personal, and did not run with the land. (Civ. Code, sec. 1467; Cole v. Hughes , 54 N.Y. 448; Scott v. McMillan , 76 N.Y. 144; Wood on Landlord and Tenant, 501, note 1; 1Smith's Lead. Cas. 168, 172, 178, 226.)
JUDGES: In Bank. Thornton, J. Works, J., Sharpstein, J., and Paterson, J., concurred.
OPINION
THORNTON, Judge
[22 P. 54] The contract binds Easton, but we cannot see it binds defendants personally. Rowell was no party to the contract, nor do we see that he ever agreed to bind himself personally for its performance.
Easton owned certain lands, and while owner made a contract in writing with plaintiff to furnish water for a certain period for a certain price, which Easton agreed to pay, and that his successors in interest should pay, annually, on certain days of the year.
He also covenanted that the contract and the covenants therein contained on his part should "run with and bind the land ."
A lien may be created on property by contract. (Civ. Code, secs. 2881- 2884.) We think that there was a lien created by contract on Mr. Easton's land mentioned in the agreement. All the covenants in the agreement were agreed to bind the land. One covenant was to pay money afterward to become due. The language above quoted shows an intent by Easton, the owner of the lands, to create a lien on them. This makes a contract of lien.
This lien bound the land as against any person who succeeded to Easton's estate, with notice of it
It seems to be conceded that defendant is the grantee or successor of Easton as to part of the lands above referred to.
The evidence tends to show that defendant had actual notice of the water right when he purchased the land. He testified that at that time he knew that there was a water right of plaintiff's connected with the land, but did not know its terms. It seems to us that such knowledge was sufficient to put him on inquiry as to the water right; that by pushing the inquiry he might have ascertained its exact condition, and that it was his duty to make the inquiry. Easton, or either of the officers of the plaintiff company, could have informed him of the right and its terms. He cannot by failure to inquire relieve himself of the obligation, which inquiry would have shown bound the land. He cannot be allowed to shut his eyes and say he did not see, when by opening them he might have seen.
But waiving the point of actual notice, we are of opinion that the notice by the record of the agreement was sufficient.
The written paper was such a paper as could by law be recorded, and impart notice to subsequent purchasers. All that was required was that it should be properly acknowledged by Easton, the creator of the encumbrance on the land. The policy of the recording laws is, that the record should impart notice to subsequent purchasers or mortgagees of the grantor. The plaintiff had no interest in the land, and created no encumbrance on it. There could be no subsequent purchasers or mortgagees of the land from it. It was no more necessary that it should be acknowledged by it than that a mortgage should be acknowledged by the mortgagee. The plaintiff accepted the encumbrance created on the land, but did not create it or charge the land in any way.
Spect v. Gregg , 51 Cal. 198, is a direct authority on the point. The execution of the power of attorney by one of the constituents made the appointee his attorney. The instrument by its terms bore that the appointee should be the joint attorney of the four parties executing it, or severally, of each. The acknowledgment by one of the contestants created the appointee his attorney, and his acknowledgment was sufficient to authorize its recordation, and make the record notice as to any subsequent purchaser from him. So here, as to Easton, who, in fact, was the only creator of the encumbrance, and the only one who charged the land.
The fact that the defendant did not use the water, if the plaintiff complied with the contract, and this was found to be a fact, is immaterial. The land was then bound, whether the water was used or not.
It may be added that the covenants are not here regarded as covenants running with the land. They could not be such, because they are not contained in grants of the estate. Such is the manifest meaning of the statute, and such, we think, was the common law. (Civ. Code, secs. 1460- 1462, and the sections following in the title.)
There can be no judgment against defendant personally for money, but the lien can be enforced by foreclosure against the land, and every grantee who is not a bona fide purchaser without notice.
Judgment and order reversed, and cause remanded for a new trial.