Cannon v. Ferguson

• Decision Date: 30 November 1945
• Docket Number: No. 14732.,14732.
• Citation: 190 S.W.2d 831
• Court: Texas Court of Appeals
• Parties: CANNON et al. v. FERGUSON et al.

190 S.W.2d 831

CANNON et al. v. FERGUSON et al.

No. 14732.

Court of Civil Appeals of Texas. Fort Worth.

November 30, 1945.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit by C. C. Cannon and others against Carl Ferguson and others, to prevent the erection of church buildings on lots allegedly subject to building restrictions contained in agreement executed by owners of most of the lots in the area. From a judgment denying them any relief, plaintiffs appeal.

Judgment affirmed.

Rawlings, Sayers & Scurlock and Nelson Scurlock, all of Fort Worth, for appellants.

Culbertson, Morgan, Christopher & Bailey and A. B. Culbertson, all of Fort Worth, for appellees.

McDONALD, Chief Justice.

This suit was brought by three owners of lots in the area hereinafter referred to for the purpose of preventing the erection of a church building on certain other lots in the area on the ground that the building of the church would constitute a violation of building restrictions allegedly in force in the area.

In the south part of the City of Fort Worth are two additions named, respectively, Frisco Railroad Addition and Frisco Heights Addition. The record does not show when such additions were subdivided, but obviously they were subdivided and the lots here involved were sold to various persons before the time of the execution of the restriction agreement herein described. Each of said additions runs a distance of two blocks north and south, and several blocks east and west. The two additions adjoin each other, Frisco Railroad Addition lying to the north, and Frisco Heights Addition to the south. The two additions, therefore, run an aggregate distance of four blocks north and south.

In the year 1930 there was an attempt on the part of owners of some of the lots facing on Forest Park Boulevard, one of the north-south streets in said additions, to create building restrictions applicable to the lots facing on such street. There were two drafts or copies of the agreement which the lot owners signed. About one-third of them signed one of the copies, and about two-thirds signed the other one. As may be observed from a reading of the agreement, neither of the copies refers to the other one, but each appears on its face to be a complete agreement within itself. The two copies are alike, except as to lot and block numbers. Omitting the formal parts, and omitting the names of the signers and the descriptions of their several lots, the instruments each read as follows:

"In order to insure the development of Frisco Railroad and Frisco Heights Addition to the City of Fort Worth, Tarrant County, Texas, as a residential section of a desirable character, to assure uniformity and harmony in such development on that part of said Additions fronting on Forest Park Boulevard, and to carry out a general plan of development for the use and convenience of each and every owner of the Lots hereinafter described, the undersigned, who are the owners of the Lots set opposite their names in Frisco Railroad Addition and in Frisco Heights Addition to the City of Fort Worth, in consideration of the mutual promises of each other, hereby agree and covenant to observe the following restrictions as to the lot or lots which he owns or may own, or have an interest in:

"1. The lots shall be used for residential purposes only.

"2. The owner of any lot, his heirs, administrators, executors or assigns shall never sell, convey, or transfer any lot or part thereof to any negro or negroes, or to any person of African descent. But this provision shall not be construed to prohibit the erection and use of such servant house or houses as shall be desirable in connection with the use of any residence erected for white persons.

"3. No house shall be erected which costs less than $4,500.00, and which is not of brick, brick veneer, or stucco, or stone construction. Each of the undersigned further covenant and agree that when he sells or conveys a lot or lots to any person whomsoever, he will include in his Deed of conveyance the restrictions herein set forth and provide further that such restrictions shall be construed as a covenant running with the land, and that a violation thereof shall entitle the Vendor to reenter the property so conveyed and take possession thereof."

Following the body of the agreement appear what purport to be the names of the signers, set opposite each of which is the lot and block number of the lot purported to be owned by each signer.

The two documents were recorded in the Deed Records of Tarrant County on December 2, 1930.

As has been indicated, Forest Park Boulevard runs a distance, north and south, of two blocks through Frisco Railroad Addition and two blocks through Frisco Heights Addition. In the northermost block the owners of all but five of the lots facing Forest Park Boulevard signed the restriction agreement. In the next block south the owners of all but two lots signed the agreement. In the third block, proceeding south, all of the owners signed, and in the fourth or southermost block none of the owners signed the agreement. There are a total of eighty lots facing Forest Park Boulevard. The owners of sixty signed the agreement, the owners of twenty did not. With the exception of a single lot facing on another street, no lots elsewhere in the additions were included in the agreement.

The two northermost lots on the west side of Forest Park Boulevard were not included in the agreement, nor were the three northermost lots on the east side of the street. The University Baptist Church has acquired the six northermost lots on the east side of Forest Park Boulevard, as well as other lots in the addition which are not restricted, and intends to build an auditorium and other church buildings on said lots. The three northermost lots, which are admittedly unrestricted, are lots Numbers 18, 19 and 20 in Block 7 of Frisco Railroad Addition. The next three lots to the south are lots Numbers 15, 16 and 17. The latter three are included in the restriction agreement. The plaintiffs are severally the owners of three lots lying to the south in the same block and on the same side of the street, to-wit, Numbers 11, 13 and 14.

Plaintiffs seek to prevent the erection of the proposed church buildings on lots 15, 16 and 17, but not on the other lots owned by the Church.

Plaintiffs were denied any relief in the court below in a non-jury trial, and have appealed.

Appellees, being the Church and certain named officials of the Church, first contend that plaintiffs cannot enforce the restrictions as against appellees because there is no privity of estate between them as to their respective lots. They contend that restrictions such as these could be created only in a conveyance of title, as in the case of restrictions contained in the deeds of one who subdivides and sells land. We overrule this contention. As was held in the early case of Trustees of Columbia...