## Facts

- James V. and Maria Toscano owned real property and, by gift deed (1950), conveyed it to Mountain Brow Lodge No. 82, a fraternal nonprofit corporation.
- The deed’s habendum clause stated the property was “restricted for the use and benefit of the [Lodge], only,” and provided that if the property failed to be used by the Lodge, or if the Lodge sold or transferred any part, it would “revert” to the grantors or their successors.
- The Lodge asserted the clause was void as an absolute restraint on alienation and sought to remove any claimed interest of the Toscanos’ estates.
- The Toscanos’ estate representatives contended the clause created a valid conditional estate in the Lodge, enforceable by reversionary rights in the grantors’ successors.
- The case was submitted on stipulated facts; the parties agreed the sole question on appeal was the legal validity of the deed conditions.

## Issues

1. Whether the deed language imposing forfeiture upon “sale or transfer” is an invalid absolute restraint on alienation.
2. Whether any invalid restraint on alienation can be severed, leaving an enforceable use restriction with a reversionary remedy.

## Decision

- The Court of Appeal affirmed judgment for the Toscanos’ estate representatives.
- The clause providing forfeiture upon “sale or transfer” was held an invalid absolute restraint on alienation and therefore void.
- The use restriction (“for the use and benefit of the [Lodge], only,” with reversion if the property ceased to be so used) was upheld as valid.
- The court severed (excised) the invalid alienation-restraint language and enforced the remaining use condition, leaving the Lodge with a defeasible fee and the grantors’ successors with the corresponding future interest.

## Legal Principles

- Deeds are construed to effectuate the grantor’s intent as shown by the language used and the surrounding circumstances.
- No specific formula is required to create a fee subject to a condition subsequent if the instrument shows an intent to impose a condition and a forfeiture-type remedy.
- An absolute restraint on alienation of a fee simple interest—conditioning forfeiture on the mere act of sale or transfer—is void as against public policy.
- Where a deed contains both an invalid restraint on alienation and a separable, otherwise valid use condition, the invalid restraint may be severed if doing so preserves the grantor’s primary intent.
- A continuing use limitation tied to reversion upon cessation of the specified use can be valid even when an accompanying anti-transfer provision is not.

## Conclusion

The court held that the deed’s forfeiture-on-transfer provision was void as an absolute restraint on alienation, but it severed that language and enforced the independent condition requiring continued use of the property for the Lodge’s benefit, thereby preserving a valid defeasible estate with reversionary rights in the grantors’ successors.


Mountain Brow Lodge No. 82, Indep. Ord. of Odd Fellows v. Toscano, 257 Cal. App. 2d 22 (Cal. Ct. App. 1967)