Dissenting Opinion
Fullam, J.,I regret that I am unable to agree with the majority position in this case. I am completely in accord with the majority view that the stipulation against recording does not contravene public policy, and that it constitutes a valid and enforceable waiver of the benefits of the recording statutes. But it does not follow that plaintiff is entitled to relief in this action at the present time.
The agreement of sale is still in effect, and there is no basis on the present state of the record to order it cancelled or declare it void. The majority recognizes this, but attempts to do the impossible: remove from the record a valid instrument without declaring the instrument invalid. Notwithstanding the majority’s edict, third party searchers of the record will be made aware of the existence of the agreement of sale; of the court’s order expunging it from the record; and of the reasons for such action, none of which impair the validity of the agreement itself. In short, by ordering the agreement stricken from the record, the court does a *257vain and useless act, which merely enlarges the total record in this matter.
I recognize that defendant has 'breached one small part of the agreement of sale. At such time as plaintiff can allege and prove that he has been damaged by such breach, plaintiff would be entitled to his remedy. If the agreement remains valid and is completely executed, of course plaintiff Would suffer no damage by the recording. On the other hand, if the agreement is terminated or rescinded, then plaintiff would have a right to require defendant to clear the record and, presumably, would have a cause of action for damages if defendant failed to do so. But until su'ch time as plaintiff has been adversely affected by the recording, I see no justification for interference by this court. In effect, the majority is attempting to decree specific performance of one small part of the agreement of sale without any showing of justification for such action on behalf of plaintiff.
For the foregoing reasons, I respectfully dissent.