Anderson v. Rowland

• Decision Date: 09 March 1898
• Citation: Anderson v. Rowland, 44 S.W. 911, 18 Tex.Civ.App. 460 (Tex. App. 1898)
• Parties: ANDERSON et al. v. ROWLAND.
• Court: Texas Court of Appeals

44 S.W. 911

ANDERSON et al. v.ROWLAND.

Court of Civil Appeals of Texas.

March 9, 1898.

Appeal from district court, McLennan county; Murshall Surratt, Judge.

Suit by H. K. Rowland against A. P. Anderson and others for specific performance.From a decree granting a perpetual injunction, defendants appeal.Affirmed.

Wm. W. Evans, for appellants.Herring & Kelley, for appellee.

FISHER, C. J.

"On the 17th day of December, 1896, J. E. Smith sold and conveyed to S. K. Rowland a certain lot in the city of Waco, and in the deed conveying said lot Smith uses the following language, to wit: `As a further consideration for this purchase and sale, I, the said J. E. Smith, obligate myself not to run, or permit to be run, any saloon or place for the sale of malt or intoxicating liquors, in any building now owned by me in the same block in which the above-described property is situated, whether I continue to own said property, or sell or convey the same to other parties, for a period of five years.'After selling and conveying the above property to H. K. Rowland, Smith sold and conveyed unto S. E. Clauss another storehouse owned by him in the same block in the city of Waco.The respective positions of the property sold to H. K. Rowland and that sold to S. E. Clauss are shown on a map on page 19 of the record; the one sold to Rowland being marked and designated as `Rowland's Saloon,' and the one sold Clauss, marked and designated `Anderson's Saloon,'—all the property situated on a public street, near the depot of the Missouri, Kansas & Texas Railway Company.The evidence showed that H. L. Luedde, who was acting as agent for defendantS. E. Clauss, knew that J. E. Smith had previously conveyed the storehouse in the same block to H. K. Rowland, and knew of the condition, above recited, in the deed from Smith to Rowland.J. E. Smith conveyed the property in question on the 5th day of March, 1897, to S. E. Clauss.S. E.Clauss rented the property to Mr. Anderson, who opened up a saloon in the property rented by him, which was in the same block as that sold by Smith to Rowland."At the time the conveyance was made by Smith to Rowland, and at the time Anderson opened up the saloon in the same block, Rowland was conducting and carrying on a saloon business in the property purchased by him, and before Anderson opened up his saloon he was notified by Rowland not to do so, and of Rowland's right, by virtue of the stipulation contained in the deed from Smith to him.In 1895, after Anderson had opened up his saloon business, plaintiff brought this suit to enjoin him from the pursuit of that business, and violating the covenant contained in the deed prohibiting the sale of liquors in other buildings in the same block that were owned by Smith at the time that the deed to Rowland was executed.The court below perpetuated the injunction, and from that judgment this appeal is taken.The above are all the facts that are necessary to be stated and found by us.

It is contended by appellants that the restrictive clause in the deed from Smith to Rowland, as to the use of the property, is void, because it is contrary to the trust laws of this state, and is also contrary to public policy, and void at common law.In a case where one merchant sold his business to another, and as a part of the consideration agreed to refrain from engaging in the mercantile business in the town where they were located for one year, the supreme court held that the agreement was valid, and not prohibited by the anti-trust statutes of this state.Gates v. Hooper(Tex. Sup.)39 S. W. 1080.There is no substantial difference between the contract there construed and the restrictive clause in the deed in question.Contracts in total restraint of trade are void, but, where the restraint is partial and restrictive as to time and place, and reasonable, and based upon a consideration, it is valid, and will be enforced.3 Am. & Eng. Enc.Law, 882;Irrigation Co. v. Dawson(Tex. Civ. App.)24 S. W. 576;Jeffery v. Graham, 61 Tex. 481.Restraints upon trade, although limited as to time and place, may be of such magnitude as to injuriously affect the interests of the public, and for this reason be contrary to public policy.Oil Co. v. Adoue, 83 Tex. 650, 19 S. W. 274.But the restrictive covenant contained in the deed before us does not relate to a transaction which affects the public interests, but it simply concerns the private business of the parties, in limiting the use of the property for a definite time.It is a reasonable measure, agreed upon for the protection of one of the parties to the contract, relating to a matter of private concern between them, which the public are not interested in, based upon a consideration advanced to the other.Manufacturing Co. v. Garst(R. I.)49 Am. St. Rep. 784, and notes (s. c. 28 Atl. 973);Angier v. Webber, 92 Am. Dec. 749, and notes;Hodge v. Sloan(N. Y. App.)17 N. E. 336.In our opinion, the covenant in the deed is legal.

It is next contended that the covenant in question contained in the deed to plaintiff is personal and does not run with the land owned by Smith, for which reason it would not affect his subsequent vendees.It is unnecessary for us to decide whether the covenant is real or personal; for, if we should hold it to be of the latter class, the plaintiff, under the facts of this case, could nevertheless maintain his action.It is clear, from the facts, that the appellant Anderson, before he opened the saloon and engaged in that business in lot 816, and Luedde, the agent of Clauss, in purchasing this lot from Smith, knew of the restrictive clause in the deed from Smith to appellee, Rowland, and that its observance would be insisted upon.Purchasing the property and entering upon it, engaging in the business prohibited, with notice of the restrictive condition in the deed to plaintiff, puts appellants in the same attitude as that occupied by Smith.If Smith had violated in person the agreement, the action of plaintiff would lie against him.The appellants, with notice of the plaintiff's rights, could occupy no better position.They, under the circumstances, would have no better right than Smith.

In a case where a covenant restricting the use of the land was violated, the court of appeals of New York said: "But the question presented is, upon the conceded facts, really one of individual right, with which the question of public policy has little, if anything, to do.Parties competent to contract have contracted, —the one to sell a portion of his land, but only upon such conditions as will protect himself in the prosecution of business carried on upon the residue; the other agreeing to buy for a consideration affected by that condition, and enabled to do so only by acceding to it, and he therefore binds himself by contract to limit the use of the land purchased in a particular manner.There seems no reason why he and his grantee, taking title with notice of the restriction, should not be equally bound.The contract was good between the original parties, and it should, in equity, at least, bind whoever takes title with notice of such covenant.By reason of it, the vendor received less for his land; and the plain and expressed intention of the parties would be defeated if the covenant could not be enforced as well against a purchaser with notice as against the original covenantor.In order to uphold the liability of the successor in title, it is not necessary that the covenant should be one technically attaching to and concerning the land, and so running with the title.It is enough that a purchaser has notice of it; the question in equity being (as is said in Tulk v. Moxhay, 11 Beav. 571;Id., 2 Phil. Ch. 774) not whether the covenant ran with the land, but whether a party shall be permitted to use the land inconsistently with the contract entered into by his vendor, and with notice of which he purchased.This principle was applied in Tallmadge v. Bank, 26 N. Y. 105, where the equity in regard to the manner of improvement and occupation of certain land grew out of a parol contract made by the owner with the purchaser, and was held binding upon a subsequent purchaser with notice, although his legal title was absolute and unrestricted.In Trustees v. Lynch, 70 N. Y. 440, the action was brought to restrain the carrying on of business on certain premises in the city of New York, of which the defendant was owner, upon the ground that the premises were subject to a covenant reserving the property exclusively for dwelling houses.The court below held, among other things, that the covenant did not run with the land, and that the restriction against carrying on any business on the premises was liable to conflict with the public welfare, and judgment was given for the defendant.Upon on appeal it was reversed, and the covenant held to be binding upon a subsequent grantee with notice, as well as upon the original covenantor.So the restraint may be against the use of the premises for one or another particular purpose, as that no building thereon `shall be used for the sale of ale, beer, spirits,' etc., `or as an inn, public house, or beer house'(Carter v. Williams, L. R.9 Eq. 678); and it is said, a man may covenant not to erect a mill on his own lands.Mitchel v. Reynolds .Many other instances of restraint might be referred to; and, where it is of such nature as concerns the mode of occupying or dealing with the property purchased in the way of business operations, or even the omission of all business, or certain kinds of business, or the erection or nonerection of buildings upon the property, we see no reason to doubt the validity of an agreement, fair and valid in other respects, which secures that restraint.Indeed, it seems well settled by authority that a personal obligation, so insisted upon by a grantor and assumed by a grantee, which is a restriction as to the use of the land, may be enforced in equity against the...