Bethea v. Lockhart, 10501.

• Decision Date: 12 April 1939
• Docket Number: No. 10501.,10501.
• Citation: Bethea v. Lockhart, 127 S.W.2d 1029 (Tex. App. 1939)
• Parties: BETHEA et al. v. LOCKHART et al.
• Court: Texas Court of Appeals

127 S.W.2d 1029

BETHEA et al. v.LOCKHART et al.

No. 10501.

Court of Civil Appeals of Texas. San Antonio.

April 12, 1939.

Rehearing Denied May 10, 1939.

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

Suit by Dr. J. L. Lockhart and others against Mrs. L. H. Bethea and others to enforce by injunction alleged building restrictions in the subdivision known as Greenwood Village in the City of San Antonio, Texas, limiting the use of property in such subdivision for resident purposes only until January 1, 1950.From a judgment for plaintiffs, the defendants appeal.

Affirmed.

Boyle, Wheeler, Gresham & Terrell, of San Antonio and Sawnie B. Smith, of Edinburg, for appellants.

Herman A. Knopp and Jesse I. Edwards, both of San Antonio, for appellees.

MURRAY, Justice.

This suit was instituted by Dr. J. L. Lockhart, Roy Mitchell, Herbert Hill, Hillyer-Deutsch-Jarratt Company, and Home Owners' Loan Corporation, against Mrs. L. H. Bethea and others, to enforce by injunction alleged building restrictions in a subdivision known as Greenwood Village in the City of San Antonio, Texas, limiting the use of property in said subdivision for residence purposes only, until January 1, 1950.

The cause was submitted to a jury upon special issues and in keeping with the answers of the jury to the issues submitted judgment was entered granting plaintiffs below a permanent injunction against Mrs. L. H. Bethea and the other defendants, restraining them from violating the alleged building restrictions.From this judgment Mrs. L. H. Bethea and the other defendants below have prosecuted this appeal.

Mrs. Bethea acquired title to Lots One (1), Two (2), Three (3), Four (4), in Block Seventeen (17), New City Block Sixty-five Hundred Thirty-seven(6537), situated within the corporate limits of the City of San Antonio, by deed dated August 5, 1937.This deed contained the following provision: "This conveyance, however, is made subject to the conditions and restrictions contained in Deed Records in Vol. 769, page 531, andVol. 1063, page 548, Bexar County Deed Records."

The instrument recorded in Vol. 769, page 531, is from San Antonio Development Company to present and future owners, and is called "Restrictions in Monte Vista Addition."This instrument contained among others, the following restrictions: "1st. Said addition shall be used for residence purposes only and no part thereof shall be used for business purposes; that no apartment house, double house, flat, lodging house, hotel, or any building for business purposes, or any other structure whatever other than a first-class private residence, with the customary outbuildings, garages and servants houses, shall be erected, placed or permitted in such addition."

The deed from San Antonio Development Company to Robert McGarraugh is recorded in Deed Records of Bexar County, Texas, in Vol. 1063, p. 548, and contains, among others, the following provision: "1st. Said property to be used for residence purposes only."

Thus it will be seen that Mrs. Bethea's deed incorporated, by reference, restrictions to the effect that the property was to be used for residence purposes only.

Mrs. Bethea was undertaking to construct a gasoline filling station on these lots and was only prevented from doing so by the injunction granted by the trial judge.

Appellants' first proposition is as follows: "Where a suit is brought by property owners in a subdivision who were not the original grantors against a purchaser of lots in said subdivision to enforce by injunction alleged building restrictions limiting the use of property in said subdivision for residence purposes only until January 1, 1950, and the subdivider and original grantor failed to impose said restrictions on each of the separate lots sold in said subdivision by failing to incorporate said restrictions in the deeds to the various lots sold in said subdivision, no general building scheme or plan for the development of a restricted residential subdivision came into existence and it was error for the Court to overrule defendants' motion for an instructed verdict in favor of the defendants."

Appellees contend that this proposition should be overruled, because it assumes that neither of the plaintiffs below were the original grantor of Mrs. Bethea.It is nowhere alleged in the pleadings that any one of the plaintiffs below was the original grantor of Mrs. Bethea.In fact, it is impossible to tell from the pleadings who Mrs. Bethea's grantor was.It is further clear that the plaintiffs below pitched their entire cause of action on the theory that they had purchased lots in the Greenwood Village Addition, and that this addition was developed by Robert McGarraugh under a general plan, or scheme, to make of the addition a highly restricted residential district; that in pursuance of such scheme there were placed in the deeds to each purchaser from McGarraugh certain covenants and restrictions, among which was one to the effect that the property was to be used for residence purposes only.

There is no intimation in the pleadings that the suit was by an original grantor against an original grantee to enforce a covenant contained in a deed executed by such original grantor.The plaintiffs are bound by their pleadings and must prove the kind of a cause of action which they have plead.This is especially true in suits which are purely injunction suits.Magnolia Petroleum Co. v. de Garcia, 126 S.W. 2d 1006, decided March 29th, 1939, by this Court, and not yet reported [in State Reports].Townes' Texas Pleading, 2d Edition, p. 426, states:

"The facts stated must truly represent the case and correspond to the proof to be offered.However good the cause of action or defense of the litigant may be, it is of no avail to him unless it has been plead.Even if the facts should be in evidence they would avail nothing, for pleading and proof are both necessary, they must correspond, and the recovery can only be based upon them both.

"The usual formula for expressing this rule is that: the allegata and the probata must correspond.If they do not, the variance is fatal as an objection to the testimony when offered, and if testimony should be improperly received, through inadvertence or error, it cannot be the basis of a judgment by the court."

Returning to a consideration of appellants' first proposition on its merits, it would seem that appellants' contention is that if the original subdivider of a restricted residential district should fail to incorporate, in each and every deed executed to purchasers of lots in the district, the same restrictions, or if restrictions should be omitted altogether from one or more deeds, there would be a failure of a general building scheme or plan for the development of a restricted residential subdivision, and that therefore the restriction would become of no effect and might be violated by any one, or at least could not be enforced by persons who were not the original grantor or his privies.

We overrule this contention.It occurs to us that where a subdivision has been placed upon the market with a declared intention that it will be developed as a restricted residential district and enhanced values are paid for the lots on this representation, the failure of the developer to include uniform restrictions in all deeds or his failure to include any restrictions in one or more deeds would not of itself take away all of the rights of the other purchasers to have the district maintained as a restricted residential district.If appellants' proposition is correct then a subdivider might sell hundreds of lots for enhanced prices, upon the representation that the district was to be a restricted residential district, and then by his failure, either through inadvertence or otherwise, to include such restrictions in one deed, destroy the entire scheme or plan for a restricted residential subdivision.We refrain from making such a holding.

In the case of Hooper v. Lottman, Tex. Civ.App., 171 S.W. 270, 272, it is said:

"So the general rule may be safely stated to be that where there is a general plan or scheme adopted by the owner of a tract, for the development and improvement of the property by which it is divided into streets and lots, and which contemplates a restriction as to the uses to which lots may be put, or the character and location of improvements thereon, to be secured by a covenant embodying the restriction to be inserted in the deeds to purchasers, and it appears from the language of the deed itself, construed in the light of the surrounding circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject thereto, and to have the benefit thereof, and such covenants are inserted in all the deeds for lots sold in pursuance of the plan, a purchaser and his assigns may enforce the covenant against any other purchaser, and his assigns, if he has bought with actual or constructive knowledge of the scheme, and the covenant was part of the subject-matter of his purchase.De Gray v. Monmouth Beach Club House Co., 50 N.J.Eq. 329, 24 A. 388;Hano v. Bigelow, 155 Mass. 341, 29 N.E. 628.

"The facts in the case at bar bring it within the scope of the general rules stated, and we will but briefly advert to the contentions made by appellees in support of the judgment rendered in their favor.

"It is asserted, first, that a general plan of improvement is not shown because the restrictions in some deeds vary as to the distance from streets within which barns and similar buildings may be erected; also that in two instances deeds to lots were made without restrictions.

"Uniformity in the restrictions imposed on the lots is one of the strongest proofs of the existence of a building scheme.It is an evidentiary matter only, however, and any deviation from uniformity, as to restrictions imposed on any of the grantees, is often seized upon, as a...