I dissent. In doing so it will serve no useful purpose to write an extended opinion, or one which will more than outline my reasons.
Unquestionably the term "real estate" has been construed as of narrower or broader meaning according to the context in which it is used. This is true of words of similar application, as "conveyance" and "grant." (San Pedro etc. R. R. Co. v.Hamilton, 161 Cal. 610 [37 L. R. A. (N. S.) 686, 119 Pac 1073].) According to Tiffany on Real Property, second edition, section 3, the expression "real estate" is frequently used by legislatures and courts as applying to any estate in lands. It is elementary that an estate is the interest one owns in either real or personal property; that a real estate is one whose duration is indefinite, as for life or in fee; and that interests in property of a fixed duration are personal estates. (Robinson's Elementary Law, secs. 60 and 62.) As used in this common-law sense, "estate" is a noun, and "real" a descriptive adjective. But the words "real estate" may be so employed as to jointly constitute a term in effect a single word in the nature of a noun; and in my opinion it was the intention of the legislature to apply this meaning to the term when it said that "an agreement authorizing or employing an agent or broker topurchase or sell real estate for compensation or a commission" is invalid unless the same or some note or memorandum thereof be in writing, etc. (Subd. 6, sec. 1973, Code Civ. Proc. Italics mine.) Commercial Bank v. Pritchard, 126 Cal. 600, at page 603 [59 P. 130], holds that a lease for a term of five years with provision for its cancellation and renewal is a "conveyance of real estate."
It is true that in the opinion of Mr. Justice McFarland, concurring, the meaning assigned the term by the opinion of the court was justified only because of sections 1214 and 1215 of the Civil Code. However, it is equally clear that the majority of the court did not entertain the same view of the matter as that able jurist. Sections 1214 and 1215 of the Civil Code have to do with the recording of instruments, whereas in that part of the opinion of the court where it is said that "the lease by the Railway Company to Pritchard was a conveyance of real estate" no reference to rights based upon the recording of the instrument was made. That phase of the case was not then being discussed. *Page 459 The opinion states that "the lease . . . is real estate," and upon that fact predicates the proposition that the warehouse placed upon the land by the owner of the lease went with a conveyance of the lease. To my mind the purpose of subdivision 6 was clearly intended to have general application in the prevention of fraud as between real estate agents and their customers, not only in disposing of estates in real property for life or of greater duration, but to accomplish the same purpose in connection with all of the transactions involving interests of any kind in land which are daily a part of the real estate agent's business. If an anomaly is thereby created, as pointed out in the majority opinion, it is the not unusual result of piecemeal legislation.