Austin v. Richardson

• Citation: 278 S.W. 513
• Decision Date: 25 November 1925
• Docket Number: (No. 7442.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: AUSTIN v. RICHARDSON et al.
• Court: Court of Appeals of Texas

Page 513

278 S.W. 513

AUSTIN v. RICHARDSON et al.

(No. 7442.)^*

Court of Civil Appeals of Texas. San Antonio.

November 25, 1925.

Rehearing Denied January 6, 1926.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Suit by E. W. Richardson and others against E. L. Austin and others for an injunction. Judgment for plaintiffs, and the named defendant appeals. Affirmed.

Leonard Brown, of San Antonio, for appellant.

W. B. Teagarden and Bruce W. Teagarden, both of San Antonio, for appellees.

COBBS, J.

Appellees sued appellant to enjoin him from further violating the terms of restrictions contained as covenants in a contract under which appellant held, owned and possessed certain premises in what is known as the Woods and Paschal subdivision, block 1752, facing south on East Park avenue, in the city of San Antonio. Under the covenants and restrictions in the deed under which appellant held it is alleged that the addition was platted out and put on the market for sale with the general plan and intention of making of it an exclusive residential district for private homes only, and that under these restrictions lots were sold to other persons, and expensive private residences were erected, used, occupied, and enjoyed as homes.

It was charged by appellees that during the ownership of the property in question by Rabe and Dreyfus the residence was converted into an apartment house, and that one of said apartments was continuously rented to families, thus locating two families in the building, and it was also charged against Austin that he, with his family, occupied the house, and had converted it into a boarding, lodging, and rooming house, which constituted an additional violation of the covenants.

The relief requested was a perpetual injunction against each and all defendants and their grantees, assigns, agents, and tenants, and all persons who may hold under them, from erecting or conducting an apartment house, boarding house, rooming house, or any other character of business in said house or on said lots, and from using, leasing, or renting said lots or premises for any other purpose except as a residence for a single family, and from violating any other of said covenants, and for costs, and for general and special relief.

The defendants, in separate answers, in substance, denied that the change in the building into a two residence or duplex house was a violation of the restrictions, and Austin denied that the use he was putting the house to violated any of the restrictions, and also asserted that, since the district was laid out and sold, there had been such a change in the community as would make it inequitable to enforce them.

There was a trial by the court without a jury, resulting in judgment for plaintiffs, with perpetual injunction against the things complained of, from which this appeal was perfected by defendant, Austin, only.

There were no requests made of the court to file findings of fact or conclusions of law, but that part of the decree pertinent to the issue is:

"It is therefore ordered, adjudged, and decreed by the court that the plaintiffs, E. W. Richardson and S. C. Applewhite, have judgment against the defendants H. Rabe, Samuel Dreyfus, and E. L. Austin, and their heirs, assigns, legal representatives, agents, and tenants, perpetually enjoining them, and each of them, from hereafter using lot No. 5 and the west half of lot No. 6, in new city block No. 1752, in the city of San Antonio, Bexar county, Tex., the property in question in this suit, for an apartment house, boarding house, rooming or lodging house, or for a dwelling of any kind designed, intended, or used for the accommodation of more than a single family; and perpetually enjoining them, and each of them, from using the building now existing on said premises for any of the purposes above enumerated, or for any purpose except as a residence for a single family; and perpetually enjoining defendant E. L. Austin and his agents, assigns, and successors in title from taking keeping, or accommodating on said lots and premises any boarders, lodgers, or roomers, and requiring him to discharge and turn off all roomers, lodgers, or tenants now permitted or accommodated by him on said premises, and requiring defendant E. L. Austin to remove the partition wall or obstruction on the first floor of the said building, which wall or obstruction was erected by H. Rabe as part of the work to change the house into two apartments, and which wall or obstruction extends from near the front door backward to a connection with a pre-existing partition, and which wall or obstruction incloses the staircase so as to prevent access to it from the interior of the lower story, and prevents access from the lower to the upper story from the inside of the building. * * *

"And it is further ordered and decreed that the plaintiffs, E. W. Richardson and S. C. Applewhite, and the officers of this court have and recover of and from the defendants H. Rabe, Samuel Dreyfus, and E. L. Austin all costs of this suit, except as hereinbefore otherwise expressly adjudicated, and that execution issue therefor.

"And it is further ordered and decreed that the writ of injunction, in terms of this judgment, be issued and served on said defendants, as provided by law, and that any and all writs and process authorized by law be issued and executed to carry this judgment into effect."

The covenants and restrictions contained in the deed were as follows:

"Subject, however, to the following conditions, covenants, and restrictions to the faithful observance of which by the acceptance of this deed said grantee above named firmly binds and obligates himself, his heirs and assigns, to wit:

"(1) That the said lot shall never be used for any purposes other than for residence purposes, and that no store, shop, saloon, bakery, apartment house, or other business enterprise shall be conducted or erected thereon.

"(2) That said residence building erected or placed on said lot shall be a two-story building, the cost of contract price of which shall in no case be less than $3,000.

"(3) That said lot shall never be sold or in any manner transferred or conveyed to Mexicans or negroes.

"It is expressly agreed, moreover, that these covenants and restrictions shall run with the land in favor of the owner of said lot above described, respectively, and also in favor of the owner or owners, respectively, of those certain lots fronting north on the south side of said East Park avenue in the city block situated immediately south of said block (new city block 1752), in which the lot hereby conveyed is located, and, these covenants being made for the benefit of all said property, the respective owners, now or hereafter, of any of said lots in either of said blocks shall have full rights to the benefits of said covenants and restrictions, and shall be authorized to enforce in their own right and names, respectively, all remedies afforded by law, whereby these grantors might enforce said covenants and restrictions or prevent infraction thereof, or may recover all lawful damages suffered by them by reason of such infraction."

This whole case revolves around the question as to whether or not appellant, or those under whom he holds, breached the covenant in respect to the "apartment house or other business enterprise" clause. The court found that said covenant was breached, under ample testimony.

When the house was first built it complied in all particulars with the covenants and restrictions. Subsequently Rabe began remodeling...