(dissenting).
I am unable to concur with the majority of this court.
In Palermo v. Allen, 91 Ariz. 57, 369 P.2d 906, (1962) (hereinafter referred to as Palermo), the Supreme Court of Arizona held that every deed must be construed as of the time it is given, not of a later date. In Corn v. Branche, 74 Ariz. 356, 249 P.2d 537, (1952), our Court ruled that “the fundamental rule is that the intention of the parties is arrived at by the language contained within the instrument” (referring to a deed).
My colleagues do not cite either of these cases, but they recognize this principle when they state in the majority opinion that:
“If mutually enforceable covenants were created in this case, they must have been created in the first conveyance by deed in 1929.”
*529They could only have been referring to the deed from Mr. and Mrs. Williams conveying Block 21 of Williams Addition to the Souers.
Although none of the parties in the trial court relied upon estoppel and the trial court did not make its ruling based upon estoppel, the majority rely upon facts and events occurring as late as 1949. Because of many references by the majority to matters of fact occurring so long after the first deed was executed, it is necessary that we set forth the facts in their true light as they existed at or about the time of the execution of said deed and to discuss the extraneous facts which have influenced the majority to show their lack of relation to the principles of law applicable to this case.
At the trial level, both plaintiff and defendants moved for summary judgment, which motions were supported by affidavits, and, upon oral argument of the respective motions, counsel submitted various exhibits in support thereof. On October 24, 1962, the trial court wrote a memorandum opinion based on which judgment was entered against the plaintiff R & R Realty Co., a corporation, adjudging that the restrictions set forth in the deed dated April 19, 1929, from Timothy S. Williams and wife to Clark H. Souers and wife were valid, existing, and in effect and that they constituted covenants running with and attached to the land and were enforceable by the owners of each of the blocks of land in the Williams Addition and that they governed the use and enjoyment of the real property belonging to plaintiff, to-wit: Block 5. Plaintiff appeals from this judgment.
UNDISPUTED FACTS BASED ON AFFIDAVITS, ADMISSIONS, ANSWERS TO INTERROGATORIES AND EXHIBITS.
A statement of the undisputed facts relative to this case is as follows:
(1) On July 13, 1927, Timothy S. Williams and Alice W. Williams, husband and wife, were the owners of 160 acres of land, more or less, lying east of Tucson and on said date duly acknowledged by their signatures a subdivision plat, entitling the same “Map of Williams Addition”. The only dedication on the face of this map was a dedication of “all the thoroughfares shown to the public use forever”.
Block 5, the subject matter of this action, was a block consisting of 3.16 acres before certain portions thereof were taken for the widening of Broadway Avenue in the City of Tucson. Block 5 fronts on Broadway Avenue, Tucson.
(2) The map of Williams Addition was duly recorded in the Pima County Recorder’s Office in Book 5 of Maps, at page 11, in September 1927.
(3) The subdivision map makes no reference to any restrictions, covenants or conditions concerning the use of the said premises or any of said blocks.
(4) The owners of said land did not file of record any declaration of covenants, restrictions or conditions governing the use of and applicable to the blocks in Williams Addition subdivision at or about the time of recording said map or at any time thereafter.
(5) The owners of said land did not file of record any agreement to make any covenants, conditions or restrictions applicable to the use of all or any of the blocks of said subdivision.
(6) The owners of said land did not file of record any agreement that they would place in each deed to the blocks of said subdivision any covenants, restrictions or conditions governing the use of said Williams Addition.
(7) The owners of said land did not incorporate in the first deed (or for that matter in any deed thereafter) any agreement between them and their grantees that they would insert the same covenants, restrictions or conditions as a part of and applicable to all other deeds to all blocks in said subdivision similarly situated.
*530(8) On April 19, 1929, about two years after recording the map, the said Williams and wife conveyed the first of the blocks of said Williams Addition and the only one which was conveyed by both original subdL viders. This was a conveyance of Block 21 to Clark H. Souers and wife, together with a Yzíth interest in the “well and equipment and water system located on said addition” and together with a %ith interest in “and to that certain park located in the center of the aforesaid addition” (referring to the park mentioned in the majority opinion).
(9) Said first deed to the Souers contains the following language in the habendum clause:
“TO HAVE AND TO HOLD, all and singular, the above described premises, together with the appurtenances and privileges thereunto incident, unto the said parties of the second part, their heirs and assigns forever.
“The property herein described is sold and conveyed under the conditions, restrictions, covenants and reservations, hereinafter set forth, which are hereby accepted and agreed to by the grantees herein to-wit: * * *.”
(Then follow thirteen separate clauses setting forth certain conditions, restrictions, covenants, and reservations referred to in paragraph 10 hereafter. Clauses 7, 8, 11, 12 and 13 are quoted in the majority opinion.)
(The habendum clause concludes.)
“The aforesaid conditions and restrictions and each and all thereof shall continue and remain in full force and effect at all times as against any owner of any of the said property, however his title thereto may be acquired until January 1, 1978, on which date the said conditions and restrictions and each and all thereof, shall terminate and end, and thereafter be of no further legal or equitable affect on the said property or any owner thereof, except that the restrictions referring to persons of African or Asiatic descent and to persons who are not of the White or Caucasian race shall be perpetual.
“The foregoing restrictions shall be deemed and held to be conditions upon which the property herein described is conveyed, and a breach of. said restrictions or any of them, if continued for a period of sixty (60) days after, notice of the same to (he vendee, shall .work a forfeiture and termination of .all right, title, interest, claim and demand of the vendee in and to the aforesaid property and the whole thereof, and it shall revert to the grantors with right of 'immediate, re-entry and possession. Provision hereof shall apply to the heirs, executors, and ■ assigns of the parties hereto.”
(Then follows a saving clause which holds any mortgage or deed of trust made in good faith harmless against the forfeiture clause set forth in the immediate preceding paragraph.) (Italics supplied.)
(10) The thii-teen clauses of covenants, conditions and restrictions in said deed to the Souers deal entirely with the use of said Block 21, providing generally that it shall be used for private residence only, no business thereon, no billboards or advertising, no drilling for oil, no derricks or similar structures, no temporary housing or garage dwellings thereon, no cattle, no sheep, etc., to be kept thereon, the property was not to be sold to anyone other than of the White or Caucasian race, only a first-class private family residence of a value of at least $10,000.00 to be constructed thereon, and to be constructed and erected in accordance with the building code of the City of Tucson, setting forth also restrictions as to the setback from the street frontage of all buildings, requiring a septic tank on each block and providing that said block shall not be subdivided into any further lots or parcels.
(11) There is nothing in any of said thirteen clauses which can be construed to be a contract between grantors and grantees that grantors will impose the same covenants, conditions and restrictions upon all other blocks in said subdivision nor is *531there anything in any of said thirteen clauses which can be construed to give grantees the right to enforce compliance with the said covenants, conditions and restrictions against any other blocks in said subdivision.
(12) After this one deed to Block 21 was executed and recorded, Timothy S. Williams died, his estate was probated and thereafter distributed to his widow, no reference being made in the decree of distribution to the covenants, conditions or restrictions set forth in the deed to Block 21 (the Souers deed). The decree of distribution described the land as:
“Williams Addition to the City of Tucson, Pima County, Arizona, except Block 21 thereof.”
(13) After distribution of the estate, the widow of Timothy S. Williams conveyed Blocks 7, 23, 8, 12, and 20, (including an undivided %4th interest in the well and park as above outlined) on various dates between April 23 and November 14, 1936; each of these deeds contained the same identical language set forth in paragraph 9 above and substantially the same thirteen clauses referred to in paragraph 10 above. The matters stated in paragraphs 9 and 10 above were all true with respect to each of these five deeds so recorded and executed by Mrs. Williams. The matters set forth in paragraph 11 above apply equally as well to the five deeds referred to in this paragraph.
(14) Thereafter Mrs. Williams died and her estate was probated and the decree of distribution in her estate described the remaining blocks in Williams Subdivision without any reference to any conditions, covenants or restrictions.
(15) Thereafter one of the distributees of Mrs. Williams’ estate filed a partition suit in Pima County Superior Court on October 26, 1938, and on December 8, 1938, an amended complaint was filed. Neither the original nor the amended complaint made any claim or assertion that the remaining blocks of Williams Addition were subject to any covenants, conditions or restrictions whatever. Block 5, the subject of this action, was one of the blocks included in the partition suit.
(16) All of the defendants in said action were served and default was entered against each and all of the defendants therein on the said amended complaint. Judgment was taken on April 10, 1939, ordering the property, including Block 5, to be sold, no mention whatever being made that the sale of the blocks was subject to any restrictions, covenants or conditions and none were referred to in the judgment of the court.
Thereafter on June 5, 1939, on motion of counsel for plaintiff, but without any additional pleading being filed and zuithout any additional service or notice of any kind being given to any of the defaulted defendants, the court made and entered a modified and amended judgment in which it was ordered, adjudged and decreed that the said real estate, including the said Block 5, (and Block 13, which was not mentioned in any of the pleadings) be sold in one parcel and that the deed to be given shall contain the following provisions and restrictions, to-wit:
“This deed conveys to the purchaser the property hereinbefore described, subj ect to any and all restrictions, covenants, agreements, conditions and easements contained in the deeds heretofore given by Timothy S. Williams and Alice W. Williams, his wife, or by Alice W. Williams, as distributee under the decree of distribution of the estate of Timothy S. Williams * *
(17) On July 24, 1939, the court commissioner executed and recorded his deed selling the property, including Block 5, to one buyer, which deed recited that:
“ * * * the said sale was made subject to all the restrictions, covenants, and agreements, conditions and easements contained in the deed heretofore given by Timothy S. Williams and Alice W. Williams, his wife, or by Alice W. Williams to purchasers of certain portions of said Williams Addition, which deeds *532are now of record in the office of the County Recorder of Pima County, Arizona, and are hereby referred to for a statement of said restrictions, covenants, agreements, conditions and easements, so far as the said restrictions, covenants, agreements, conditions and easements still remain in full force and effect. * * * ” (Italics supplied.)
(18) In the deed whereby Appellant acquired its title to the said Block 5 of Williams Addition, the following language appears after the description of said block:
“SUBJECT TO
(Non-applicable paragraphs eliminated.)
“Restrictions, conditions and covenants, including a reversionary clause, contained in instrument recorded July 16, 1936, in 190 Deeds, page 592; and by instrument of record in Book 92 of Miscellaneous Records, page 321, in Book 222 of Deeds, page 527, and by instrument recorded May 26, 1944, in Book 267 of Deeds, page 309, in Book 289 of Deeds, page 530, and recorded March 9, 1946, in Book 296 of Deeds, page 239, and recorded May 18, 1956, in Docket 987, page 138.”
THE LAW APPLICABLE TO THIS CASE.
In any discussion of the rules of law applicable to this case, there are several basic premises which must be kept in mind.
The first premise is that a building scheme or plan applicable to an entire subdivision exists only because of an express contract made between the subdividers and their grantees, and, if the contract does not arise from a set of covenants, conditions and restrictions recorded by the sub-dividers and made applicable to the entire subdivision, it must be found in the first deed between the subdividers and their grantees.
The second premise is that the intent of the parties to make the covenants and restrictions run with the land and be for the benefit of each and every lot owner must plainly appear from the language in the deed because it must be contracted between the parties.
The third premise is that every deed must be construed as of the time it is made and not as of a later date; and the construction must be found in the language of the deed itself.
The fourth premise is that in construing a deed, all doubts must be resolved in favor of the free use and enjoyment of property and against the restriction of property.
The fifth premise is that restrictive covenants are presumed to be for the benefit of the grantor alone in the absence of evidence to the contrary and the burden of showing that such covenants run with or are appurtenant to land is on the party claiming the benefit of the restrictions.
All of these principles are clearly enunciated and supported in the law of Arizona beginning with the case of McRae v. Lois Grunow Memorial Clinic, 40 Ariz. 496, 14 P.2d 478, (1932), (hereinafter referred to as McRae) and in the subsequent cases of O’Malley v. Central Methodist Church, 67 Ariz. 245, 194 P.2d 444, (1948), (hereinafter referred to as O’Malley); Smith v. Second Church of Christ, Scientist, Phoenix, 87 Ariz. 400, 351 P.2d 1104, 84 A.L.R.2d 766 (1960), (hereinafter referred to as Smith) ; and concluding in Palermo, supra, in 1962.
Although the majority seek to construe the words “said property” as found in clauses 7, 8, 11, 12, and 13 of said restricttions, as applying to all of the blocks of Williams Addition and implying therefrom a mutual agreement upon the part of the grantees Souers that mutually enforceable equitable servitudes were created by the deed so as to render the restrictions available to each subsequent grantee against any other or prior grantee, it is a construction which is not justified because the thirteen clauses setting forth the condi*533tions for the use of land are prefaced with the words:
“The property herein described (which refers only to Block 21) is sold and conveyed under the conditions, restrictions, covenants, and reservations hereinafter set forth, which are hereby accepted and agreed to by the grantees herein, to-wit (Italics supplied.)
and which habendum clause is concluded with the following clearly expressed contract :
“The foregoing restrictions shall be deemed and held to be conditions upon which the property herein described is conveyed, and a breach of said restrictions or any of them, * * * shall work a forfeiture * * * of all * * * title * * * of the vendee in * * * the aforesaid property * * * and it shall revert to the grantors * * * ”
None of the references in paragraphs 7, 8, 11, 12, and 13 of said restrictions (being references to “said property”) can change this forfeiture clause into a contract between the grantors and the grantees that the said conditions and restrictions are thereby imposed upon each and all of the lots in the said subdivision and that they, the grantors, would insert substantially like covenants and conditions in all subsequent deeds conveying blocks in said subdivision to the end that the Souers and their grantees would have the benefit of said covenants, conditions and restrictions. Likewise, the Souers did not bind themselves through any agreement with the Williams that they would be liable to any grantee of any other blocks in the subdivision because the Souers were not parties to such other deeds. Their only contract was with the Williams and it was a contract whereby they agreed “clearly and expressly” in “plain and unmistakable language” (Palermo) that the restrictions in the deed to Block 21:
“shall be deemed and held to be conditions upon which the property”
is conveyed to them and that
“a breach of said restrictions or any of them * * * shall work a forfeiture * * * of all of the title in and to (Block 21) and * * * it shall revert to the grantors”.
Where, under the facts of this case, have the Appellees upheld the burden of showing that the restrictions in this case run with the land and are for the benefit of each lot owner in the subdivision in the face of the plain and clearly expressed contract found in the forfeiture clause in the Souers deed?
The Supreme Court of Arizona had no difficulty in determining what was sufficient evidence to meet the burden of proof to show that a forfeiture clause did contain adequate language to express the intent of the parties that the restrictions shall apply to each and every lot in a subdivision. In McRae, plaintiff’s deraigned their title from Phoenix Title & Trust Company, acting as trustee for the owners of the premises. The deed from the trustee contained conditions and restrictions concerning the use of the property (much the same as the thirteen restrictive clauses in the Souers deed), but also contained the following express contract to make the said conditions apply to all of the lots in the subdivision:
“ * * * that grantor shall insert substantially like covenants and conditions in all subsequent transfers of lots in said Hurley Heights subdivided made by grantor * * * that all covenants, conditions, and stipulations herein contained run with the land and upon the breach of any one thereof the property shall revert to said grantor, its successors or its assigns; * * (Italics supplied.)
In all other deeds from the trustee in McRae, there were inserted substantially the same conditions and restrictions. Our Supreme Court construed this language, even though in the form of a forfeiture clause, as clearly showing the intention of the parties that the restrictions would run with the land and would be for the benefit of each and *534every lot and therefore enforceable by the grantee of each and every lot in the subdivision. At page 503 of the Arizona Reporter, at p. 480 of 14 P.2d, our Court said:
“One of the legal questions involved is whether the restrictions in the deeds from the original grantor were inserted just for the benefit of such grantor or for the benefit of any and every purchaser of a lot in the Hurley Heights Subdivided. We think the restrictive covenants as to the use of the real estate are a part of a general plan or scheme for the development of Hurley Heights Subdivided and for the benefit of all the lots included in the tract and may be enforced by the owner of any lot in such tract against the restrictions here run with the land and were clearly intended to be for the benefit of each and every lot. They were inserted in all the deeds so that each purchaser took his lot with the benefits and burdens of the plan or scheme of improvement.” (Italics supplied.)
In the majority opinion, my colleagues pick up various quotations from O’Malley, Palermo, tend from Werner v. Graham, 181 Cal. 174, 183 P. 945, at 949 (1919), (hereinafter referred to as Werner) and thereby suggest that the Supreme Courts of Arizona and California support their position. A fair consideration of these cases negatives such a conclusion. Indeed, they show that Arizona and California hold contrary to this court.
In O’Malley an effort was made to convert a forfeiture clause into one establishing conditions and restrictions applicable to all of the lots in the subdivision because certain recitals appeared in some of the deeds to the effect that the grantors were endeavoring to create a choice and attractive subdivision. A careful reading of O’Malley discloses that our Supreme Court did not find a common building scheme to be established' because there was nothing but a forfeiture clause in the deed, exactly as in the instant case.
The Supreme Court of Arizona adopted the true theory of Werner in the following language on page 254 of 67 Arizona Reports, on page 450 of 194 P.2d, in its opinion in O’Malley: • . ■ ■
“(5). General building schemes do not come into being gradually by natural evolution. A contract is made and a meeting of minds had. If a building scheme was established at the time of the-platting of Los Olivos Amended and the restrictive covenants with the forfeiture provision were agreed upon and inserted in the deeds for the benefit of all lots conveyed, then such covenants would be neighborhood restrictions and be enforceable by all grantees. If not so shown 'the express terms of the deeds govern.”
What were the express terms of the Souers deed ? They were:
"The foregoing restrictions shall be deemed and held to be conditions upon which the property herein described (Block 21) is conveyed, and a breach of said restrictions * * * for * * * 60 days * * * shall work a forfeiture and termination of all right (and) * * * title, * * * of the vendee in and to the aforesaid property * * * and it shall revert to the grantors * * * with immediate re-entry and possession.” (Italics and parenthetical words supplied.)
Those are the express terms of the Souers deed which govern. They are the only terms of the deed expressly showing the contract and agreement of the parties, (Palermo ), expressly showing that the contract between the grantors and grantees was that a forfeiture was intended upon a breach. Continuing with the quotation from our Supreme Court in O’Malley at the same page above set forth, we find the following:
There is nothing in the evidence showing that the Los Olivos Amended restrictions, that is those containing the forfeiture clause, are other than what they purport to be. In construing such restrictions in the case of Pierson v. Canfield,
*535Tex.Civ.App., 272 S.W. 231, 233, the court said:
‘ * * * It is not intended by this holding to intimate that, in a proper case, restrictions such as these may not also be enforced as covenants by purchasers of other lots under a uniform settlement scheme, but the holding is,' that there is nothing in the evidence tending to show that the restrictions are other than what they purport to be, that is to say, conditions subsequent, for the violation of which the grantors, their heirs, and assigns, alone, can claim forfeiture. 12 C.J. 410; Werner v. Graham, 181 Cal. 174, 183 P. [945], 947.'
«1» *1*
“(6) We subscribe to this rule. In the case of McRae v. Lois Grunow Memorial Clinic, 40 Ariz. 496, 14 P.2d 478, we held that restrictions providing for forfeiture only were enforceable as neighborhood restrictions on the ground that the evidence established beyond doubt a plan or scheme of improvement for the benefit of each lot owner.” (Italics supplied.)
What was the evidence in McRae that “established beyond a doubt a plan or scheme of improvement for the benefit of each lot owner”? It was the express contract in the first deed providing:
“ * * * that grantor shall insert substantially like covenants and conditions in all subsequent transfers of lots in said Hurley Heights Subdivided made by grantor” and “that all covenants, conditions and stipulations herein contained run with the land * * * ”
Thus we can see that for a general building scheme to come into existence in Arizona and to be applicable to all of the lots in the subdivision similarly situated there must be an express agreement between the grantors and grantees to the effect that the covenants, conditions and restrictions will be placed in all of the deeds conveying lots similarly situated in the subdivision and further that where the deed contains only a condition subsequent clause (such as a forfeiture clause in the first deed conveying the first lot in the Williams Addition to the Souers) there is no evidence to show that the restriction is anything more than a forfeiture clause; when you have nothing more than a forfeiture clause, when you have no express agreement to make the same covenants and conditions and restrictions applicable to all lots in the subdivision similarly situated, then “the express terms of the deed govern”. That is precisely what the Supreme Court of Arizona held in O’ Malley when it said “We subscribe to this rule.”.
WERNER IS THE LAW OF ARIZONA
Perhaps this would be a good point at which to discuss Werner, quoted with approval by the majority of this court and relied upon by the trial court in this case.
Werner also was an action to quiet title to real property, the purpose being to obtain a judicial determination on behalf of plaintiff that his lands were free of certain restrictions which were contained in a deed to a previous owner through whom plaintiff derived his title. The judgment of the trial court was that plaintiff’s land was subject to the restrictions and plaintiff appealed.
The Supreme Court of California reversed the trial court, 183 P. 945, 950. It is therefore highly pertinent to inquire into the facts of Warner because the holding of the Supreme Court of California in Werner is diametrically opposed to the ruling of the majority of this court and the trial court.
The facts in Werner appear in the second paragraph of that opinion as follows (183 P. 945, 946.):
“It appears that one Marshall was, in 1902, the owner of the whole tract, which was at that time unimproved, and in that year he subdivided it into blocks and lots and filed of record a map of the tract as so subdivided. This map showed no building lines or anything else to indicate any purpose of restricting in any way the manner in which the different lots might be built upon or otherwise improved, or *536the uses to which they might be put. Immediately following the recording of the map, Marshall began to sell and convey the lots. There were 132 lots in all, and by October 21, 1905, he had sold and conveyed 116 of them, including the lot now owned by the plaintiff. In all of the deeds from Marshall appear restrictive provisions, which, while differing slightly in some instances, dependent upon the location of the particular lot, as, for instance, upon its facing east or west, are yét so uniform and consistent in character as to indicate unmistakably that Marshall had .in mind a general and common plan which he was following. The restrictions in the deed by Marshall conveying the plaintiff’s lot are typical and read:
‘Provided, however, that this conveyance is made upon and shall be subject to the following express conditions, to-wit:’
(Restrictions omitted; the clause concluded.)
‘ * * * // the said party of the second part, his heirs, assigns or successors in estate, shall in any way fail to keep or perform the conditions above specified, or in any one of them, in any respect whatsoever, then any and all right, title, interest, and estate hereby granted or conveyed shall revert to and become vested in the said parties of the first part, their heirs or assigns.
‘The said party of the second part [grantee] accepts this deed and conveyance upon and subject to each and all of said conditions herein set forth. It is further understood and agreed that each and all of said conditions and covenants shall run with said premises and shall be binding upon the heirs, assigns and all successors in estate of the said party of the second part.’:” (Italics supplied.)
Accordingly, the factual situation in Werner is identical to that of the instant case. Yet the Supreme Court of California reversed'the trial court and held that the covenants arid conditions in the Marshall deed were not enforceable against plaintiff’s lands as a building scheme because it found nothing more than a forfeiture clause in favor of the grantor in the deed and there was no contract to make the restrictions applicable to all the lots in the subdivision.
The following quotation from the opinion in Werner, at page 949 of the Pacific Reporter, shows conclusively that it held exactly opposite to the majority of this court and trial court in the instant case. It is as follows:
“ * * * The intent of the common grantor—the original owner—-is clear enough. He had a general plan of restrictions in mind. But it is not his intent that governs. It is the joint intent of himself and his grantees, and as between. him and each of his grantees the instrument or instruments between them— in this case, the deed—constitutes the final and exclusive memorial of such intent. It is also apparent that each deed must be construed as of the time it is given. .It cannot be construed as of a later date, and, in particular, its construction and effect cannot be varied because of deeds which the grantor may subsequently give to other parties. Yet that is exactly what is done in-the decisions holding that mutual servitudes exist in cases where all the deeds taken together evidence anything more than an intent to put particular restrictions on a particular lot. As a concrete instance, take the first deed given by Marshall. At that time there was nothing to evidence any general plan of restrictions, and if the question as to the effect of the deed had arisen then, it must necessarily have been construed as if no such general plan exsited. If it must have been so construed at that time, it must be so construed now. Whatever rights were created by the deed were created and vested then, and the fact that it later appears that Marshall was pursuing a general plan common to all the lots in the tract cannot vary those rights. The same is true of each deed as it was given. Nor does it make any difference that, as *537claimed by the defendants, Marshall gave each grantee to understand, and each grantee did understand, that the restrictions were exacted as part of a general scheme. Such understanding was not incorporated in the deeds, and, as we have said, the deeds in this case constitute the final and exclusive memorials of the understandings between the parties. Any understanding not incorporated in them is wholly immaterial in the absence of a reformation. (Authorities omitted.)
“This whole discussion may in fact be summed up in the single statement that, if the parties desire to create mutual rights in real property of the character of those claimed here, they must say so, and must say it in the only place where it can be given legal effect, namely, in the written instruments exchanged between them, which constitutes the final expression of their understanding. It follows that the additional element mentioned—that Marshall exacted similar restrictive covenants from all the grantees of lots in the tract— does not affect the matter and cannot change the conclusion reached without it. That conclusion, as before expressed, is that the restrictions in the deed by Marshall to the plaintiff’s predecessor in interest ran personally to Marshall and not to the other lots in the tract, and that the defendants, who claim wholly as lot owners, did not acquire the right to insist upon these restrictions * * * ”
While the majority of this court and the trial court have paid lip service to Werner .and Palermo, both have rejected the principles of those cases. Werner is recognized by the Arizona Supreme Court as the leading case on the subject of how to create and establish a neighborhood scheme or plan and what is required to impose an equitable servitude upon each and every lot in a subdivision.
In Smith, our Supreme Court at page 409 of 87 Arizona Reporter, 351 P.2d 1104 quoted with approval four columns of text from the opinion of the Supreme Court of California in Werner, including many of the quotations set forth herein and Arizona again pronounced Werner as the law of Arizona.
It is true that there are some states which take a more liberal viewpoint of what is necessary to create equitable servitudes upon all of the lots in a subdivision, some even going so far as to make the restrictions in each grantee’s deed binding on the remaining land even though there is no covenant by the grantor to bind the remaining land, if in fact there was a general scheme or plan apparent to enable restrictions to be enforced. See Thompson on Real Property, 1962 Replacement Volume 7, § 3163, page 125. This same authority on real property thoroughly understands the doctrine of Werner and its full significance as developed in the California authorities, for at page 126 of the same Volume 7 of Thompson, supra, there appears in footnote No. 41 the following statement:
“It appears that to constitute a ‘common building scheme’ in California, the ‘building scheme’ deeds must contain: (1) an express covenant by the grantee to be bound by the restrictions, (2) a statement to the effect that the covenant is exacted for the benefit of all the property owners in the area, (3) an express statement that a general plan of restrictions is being set up, (4) a clear designation of the dominent estate, and (5) an express agreement by the grantor to impose similar restrictions on the other land owned by him and to place such restrictions in all of his deeds. Werner v Graham, 181 Cal. 174, 183 P 945; Wayne [Wing] v Forest Lawn Cemetary Association, 15 Cal.2d 472, 101 P2d 1099, 130 ALR 120, 14 So.Cal.L.Rev. 191.”
None of these requirements designated (2), (3), (4), and (5) in footnote 41, supra, are to be found in the factual situation of this case. As we have indicated above, Werner is the law of Arizona. Both Werner and Wing v. Forest Lawn Cemetery Association, supra, are quoted with approval by the Supreme Court of Arizona in Palermo, Smith, and O’Malley, and all five *538of the requirements set forth in the footnote quotátion from Thompson on Real Property, Vol. 7, supra, are to be found in the foregoing Arizona cases and in McRae.
The majority of this court recognized that it is not sufficient for the grantor to have an intention to establish a general scheme or plan, but that the original grantees must also have a similar intent and must contract specifically to create equitable servitudes binding on all of the lots covered by the plan. In an effort to establish this intent, they point to the portions of the Souers deed dealing with the creation of a water system for the subdivision, and the words “said property” appearing in Paragraphs 7, 8, 11, 12, and 13 of the various restrictions, from which they conclude that the grantor had in mind a comprehensive plan for the development óf the subdivision .and, without pointing to any express agreement in the deed, they then conclude as follows:
“We are of the opinion, however, that the language clearly implies that the land was being conveyed under a general plan of improvement, * * * and that both grantors and grantees understood and intended that mutually enforceable equitable servitudes were created by the deed so as to render the restrictions effective in carrying out the general plan.”
The majority also relies strongly on the language of the habendum clause of the Souers deed which reads as follows:
“The aforesaid conditions and restrictions and each and all thereof shall continue and remain in full force and effect at all times against any owner of any of the said property, however his title may be acquired until January 1, 1978, * * *_»
Here again we have nothing more than another reference to the “said property” without any description and which can only refer to “the hereinabove described property” that is, Block 21, the only property described in the Souers deed.
What has the Supreme Court of Arizona said is necessary to establish the intention of the grantees to be bound and to set up equitable servitudes binding against all lot owners? In Smith, supra, at page 411 of 87 Arizona Reports, our court quoted with approval from Wing v. Forest Lawn Cemetery, supra, as follows:
“The restrictions must not only appear in one deed, but in all the deeds, and must expressly declare that such restrictions-are for the benefit of and run with all other lots in the designated area. In other words, the restrictions must be for the mutual benefit of all parcel owners arid each lot imposed with a servitude for the benefit of each and every other lot. It is necessary to state 'in the deed what is the servient and what is the dominant tenement. See Berryman v. Hotel Savoy Co., 160 Cal. 559, 117 P. 677, 37 L.R.A. N.S., 5; Werner v. Graham, 181 Cal. at 174, 183 P. 945; McBride v. Freeman, 191 Cal. 152, 215 P. 678. The intent of the parties to create mutual and reciprocal rights of restrictions between the grantees of the original grantor must appear in the deed. Gamble v. Fierman, 82 Cal.App. [180] at page 182, 255 P. 269.”
Applying this language from Smith to-this case, we could ask:
(1) How can the words “said property”' in the five paragraphs above referred to and in the portion of the habendum clause quoted, supra, be said to “expressly declare that such restrictions are for the benefit of and run with all other lots in the designated area”?
(2) How can it be said that the use of the words “said property” disclose a contract that “the restrictions are for the mutual benefit of all parcel owners and each lot imposed with a servitude for the benefit of each and every other lot”?
(3) How can the words “said property” be a description of what is the “servient and what is the dominant tenement” ?
(4) Where can it be said that “the intent of the parties to create mutual and recipro*539cal rights of restrictions between the grantees of the original grantor * * * appear in the (original) deed”?
In Palermo, supra, our court not only followed with approval the principles stated in Wing v. Forest Lawn Cemetery, supra, •as quoted in Smith, supra, but likewise held that the intention of the grantees could not be implied, but had to expressly appear in the deed. We said in Palermo, 91 Ariz. 66, 369 P.2d 906, 912, as follows:
“It is not enough even if it is admitted that Cowperthwait had a general plan or scheme in mind, for a mere intent on the part of the grantor to establish a general scheme does not govern. O’Malley v. Central Methodist Church, supra; Werner v. Graham, 181 Cal. 174, 183 P. 945 (1919). The intent must be mutual, and is to he ascertained from the language of the deeds, construed in connection with circumstances existing at the time.”
And again at page 69 of the Arizona Reports, at page 915 of 369 P.2d, our court .said in Palermo:
“The intention of both parties to a particular deed must have been to impose equitable servitudes. O’Malley v. Central Methodist Church, supra. That the grantor may have had such an intention may possibly he implied from his insertion of restrictions in all deeds, but the intention of the grantee who was not a party to the deeds to other parcels obviously may not be so implied. Pierson v. Canfield, supra.
“The intention of the parties should he ■determined by a fair interpretation of the grant or reservation creating the easement. As was said in Berryman v. Hotel '.Savoy [citations omitted] :
‘It seems to us that in all these cases it is better to get at the intention * * * from the language of the deed, interpreted in the light of the attending circumstances, than to conjecture the intent from the circumstances, and then to make the language of the deed bend to that.’ ” (Italics supplied.)
Indeed, in the instant case, we could paraphrase the language of our Supreme Court in Palermo (beginning at the bottom of page 69 of the Arizona Report and concluding on page 70, on page 915 of 369 P.2d) as follows:
“In the present case, and referring to the Souers deed, there is no description of any other lands which might be the dominant tenement. There is no statement that the covenant and restrictions are meant to inure to the benefit of other land. * * * There is no statement that the restrictions are intended to ‘run with the land’. There is no covenant by grantor to insert similar restrictions in deeds to subsequent lands later to be conveyed by them. There is a complete lack of language indicating that the restrictions were meant to inure to the benefit of anyone other that the grantor, personally. Indeed, the only express contract made by the grantor and the grantee is that the grantors have a right to forfeit the interest of the grantees for breach of the agreements.”
And we could also conclude with the language of our court in Palermo at page 70 of 91 Arizona Reports, on page 915 of 369 P.2d where it said:
“(14). Equitable servitudes in favor of one parcel and against another cannot be created in any such uncertain and indefinite fashion. If the parties desire to create mutual rights in real property, they must say so in the written instrument exchanged between them. Werner v. Graham, supra; Martin v. Ray [76 Cal.App.2d 471, 173 P.2d 573], supra; Sailer v. Podolski, 82 N.J.Eq. 459, 88 A. 967 (1913).”
We could again paraphrase the language of our Supreme Court in Palermo at page 72 of the Arizona Reports, at page 917 of 369 P.2d and say:
“The evidence does not show that Williams impressed the deed to Souers with restrictions ‘for the benefit of all other property in the neighborhood’. It was not so expressed in the deed, * * * *540certainly there was no writing ‘clearly expressing’ that the restrictions were for the benefit ‘of all other property in the neighborhood’ and we cannot say that such intention was shown by ‘plain and unmistakeable implication’.”
The only express contract in the Souers deed between the parties as to what would happen if the conditions and restrictions were violated by the vendee is to be found in the forfeiture clause and its plain and simple language must be enforced in accordance with Smith and Palermo, supra, to provide for a re-entry by the grantors. In Newton v. Village of Glenn Ellyn, 374 Ill. 50, 27 N.E.2d 821 (1940), the Supreme Court of Illinois said:
“One of the most important considerations in determining whether a clause is a condition subsequent or something else is the presence or absence of a clause providing for re-entry by the grantor or his heirs, or forfeiture of the estate for a breach. (Authorities omitted.) Such a clause, while not indispensable, is always important as evidence of an intent to impose a condition subsequent and will make certain that which, in its absence, is left open to constiuction. (Authorities omitted.)”
In view of the express forfeiture contract in the Souers deed and the plain language therein calling for a forfeiture of the estate for a breach, the contract between the parties is plain and certain and cannot be left open to construction.
WHAT IS THE EFFECT OF THE JUDGMENT AND SALE IN THE PARTITION SUIT?
The judgment was entered on April 10, 1939, directing the property to be sold, including Block 5, and followed the complaint and amended complaint and did not declare that any of the land, including Block 5, was subject to any covenants, conditions or restrictions. Thereafter on June 5, 1939, fifty-five days later, and without any additional pleadings being filed or service being had on any of the defaulted defendants, the court on motion of counsel made and entered a modified, amended judgment in which it was ordered that the land, including Block 5, was to be sold subject to any and all restrictions, covenants, agreements, etc., contained in the deeds theretofore given by Timothy S-. Williams and wife or by Alice Williams as his distributee.
The fact that the second judgment was entered without notice to any of the defaulted defendants and that it granted greatly expanded relief not included in the complaint or amended complaint or in the previous judgment, establishes without doubt that the court was completely and wholly without any jurisdiction to render the modified amended judgment on June 5, 1939. One does not need to cite authorities to show that such a judgment is a nullity.
Apparently, the court commissioner who executed the deed on the sale of the property evidently felt the same way because his deeds selling the lots did not follow the judgment, but directed that the sale was:
“Made subject to all the restrictions, covenants and agreements, conditions and easements contained in the deed heretofore given by Timothy S. Williams and Alice W. Williams, his wife, to purchasers of certain portions of said Williams Addition, * * * so far as the said restrictions, covenants, agreements, conditions and easements still remain in full force and effect. * * * ” (Italics supplied.)
WHAT ABOUT THE REFERENCE TO THE LATER DEEDS MAKING THE PROPERTY “SUBJECT TO” THE CONDITIONS AND RESTRICTIONS REFERRED TO IN SAID DEEDS?
In Smith, our Supreme Court flatly held, at page 408 of the Arizona Reporter, at page 1109 of 351 P.2d, that:
“(5). The point is that reference to restrictions in a ‘subject to’ clause will not, without more, make such restrictions *541applicable to the deeded property if, as a matter of fact, they are otherwise inapplicable.”
Accordingly, the fact that the subject to clauses were added in the subsequent deeds could not create equitable servitudes upon the blocks of Williams Subdivision. Indeed, when the Superior Court of Pima County in the partition suit amended and modified its judgment without any notice to the parties defendant by ordering that the property was to be sold subject to the conditions, covenants and restrictions contained in the original deed by Timothy S. Williams and wife to the Souers, it did exactly what the trial court and the majority of this court did. It “created” a contract which the subdividers and their grantees never made and by virtue of said “contract” attempted to impose an equitable servitude on each and all of the blocks in Williams Addition, making each block a servient estate and each block a dominant estate with respect to the other blocks in the subdivision. Courts do not have authority to make “contracts” which the parties themselves did not make, nor to impose equitable servitudes upon real property in such manner.
The doctrine of Werner has been recognized as sound law by Arizona courts since McRae in 1932 when it was first mentioned in an Arizona opinion (as far as this writer knows) and is without doubt the basic fundamental law adopted by our Court in O’Malley, Smith, and Palermo. Rules of real property law which have been established for more than thirty years and reaffirmed in three subsequent cases should not be so readily overthrown because of vague and uncertain references to “said property” in a deed.
For all of the foregoing reasons, the judgment of the trial court should be reversed and set aside and the trial court be directed to enter judgment in favor of R & R Realty Co., a corporation, and against each and all of the defendants, as prayed for in plaintiff’s complaint and that all relief be denied each and all of the defendants who assert any relief against said plaintiff.
Respectfully submitted.