Clements v. Taylor, 2481.

• Decision Date: 10 November 1944
• Docket Number: No. 2481.,2481.
• Citation: 184 S.W.2d 485
• Parties: CLEMENTS et al. v. TAYLOR et al.
• Court: Texas Court of Appeals

Page 485

184 S.W.2d 485

CLEMENTS et al. v. TAYLOR et al.

No. 2481.

Court of Civil Appeals of Texas. Eastland.

November 10, 1944.

Appeal from District Court, Brown County; A. O. Newman, Judge.

Suit by W. Pat Taylor and others against M. A. Clements and others to enjoin alleged violations of restrictive covenants in a deed. Judgment for plaintiffs, and defendants appeal.

Reversed and judgment rendered for defendants.

E. J. Miller, of Brownwood, for appellants.

Wilkinson, Johnson, Griffin & Bohannon, of Brownwood, for appellees.

FUNDERBURK, Justice.

By a written instrument executed in 1941, recorded August 13, 1941, Paul Richardson, owner of lots 7 and 8 (among others) in Block 1 of the Ragsdale Addition to the City of Brownwood, and Pauline Ragsdale Ater (reciting joinder by her husband but not signed or acknowledged by him) for herself and as attorney in fact for other heirs of Paul C. Ragsdale and wife, Maggie Baggett Ragsdale, owners of lots 1, 3, 6 and 7 (among others) in Block 2, and lots 10 and 11 in Block 1 of said Addition, agreed to certain restrictions upon all said property, denominating such restrictions as "Protective Covenants." The expressed purpose of the agreement was "in order to promote the construction of desirable residences and the proper development of said property." The agreement provided: "These covenants are to run with the land and shall be binding on all parties and all persons claiming under them until January 1, 1966, at which time said covenants shall be automatically extended for successive periods of ten years, unless by a vote of majority of the then owners of the lots it is agreed to change said covenants in whole or in part."

The restrictions as set forth in the agreement were as follows:

"1. No residential structure shall be erected or placed on any building plot whereby the contract for such building structure shall be below the figure of $2,500.00. In other words, no house shall be built on any of the said lots unless said house shall have cost the builder thereof at least $2,500.00.

"2. No noxious or offensive trade or activity shall be carried on upon any lot, nor shall anything be done thereon which may be, or become an annoyance or nuisance to the neighborhood.

"3. The above described lots are intended as a residential district exclusively for people of the white race, and no use or occupancy under any kind of contract of any lot or building shall be permitted to anyone not of the white race, provided however, that this restriction shall not be constituted [construed?] to prevent occupancy by domestic servants of a different race or nationality employed by an owner or tenant.

"4. No structure shall be moved on to any lot, unless it shall conform to and be in harmony with the existing structures on other lots and with the requirements set out in these restrictions.

"5. All residences shall be connected with the water, light and sewerage services of the City of Brownwood, Texas."

W. Pat Taylor and others became the owners of said lots (each in severalty of a different lot) formerly owned by the heirs of Paul C. Ragsdale and wife; and M. A. Clements and wife became the owners of said lots formerly owned by Paul Richardson, all acquiring their titles subsequently to the execution and recording of said agreement and by general warranty deeds containing no restrictive covenants and making no reference to said agreement.

M. A. Clements and Oliver Allman (the latter being the father-in-law of Clements and claiming under and subject to him) had no knowledge of said agreement other than such, if any, as resulted from the recording thereof. Clements and Allman moved on to one of said lots a one room shed room garage, 14×16 feet, which Allman subsequently used "to carry on his business of repairing and upholstering furniture with small handtools only, and without employees or helpers." The work being carried on in said shed room "creates no noise and does not disturb the Plaintiffs or their families. Allman does furniture repairing and upholstering for the public and the furniture repaired or upholstered is delivered to Allman at said shed in trucks, automobiles and other convenient vehicles and hauled away after it is repaired or upholstered in the same conveyances." Allman commenced construction of a 12×16 foot extension to the shed room on the Clements' lots in order to have more room to carry on his trade of furniture repairing and upholstering and intended to carry on said business just as he had been doing, which required more room.

This suit was brought by W. Pat Taylor and others, successors to the title and interests of heirs of Paul C. Ragsdale and wife in said lots, against M. A. Clements and wife (joining also said Oliver Allman as a Defendant) to enjoin said defendants from alleged violations of said restrictive covenants. It was alleged defendant had violated said restrictions (1) "By moving on to said lot [owned by Defendants] * * * a shed or shack about 12 feet wide and 200 [20?] feet long with one long sloping roof, in which Defendant and Oliver Allman now conduct what he calls a cabinet shop. The total value of said shed does not exceed $100.00. The Defendants are now in the process of building a small extension to said shed, the value of which does not and will not exceed $50.00, said extension being added to shed for the purpose of affording the Defendant Oliver Allman additional space for his cabinet work. Said shed, as Plaintiffs are informed, is not connected with city sewerage services. Defendants, therefore, have violated each and every restriction and covenant running with the title on their lots and to Plaintiffs' lots, as fully set forth in the Restrictions and covenants herein fully set out * * * [and] Plaintiffs * * * are entitled to an order of this honorable court preventing Defendants from further work on said extension to said shed, permanently restraining them from using said lots Nos. 7 and 8 in Block No. 1 as a place to conduct a cabinet shop or any other sort of business and to a mandatory writ compelling Defendants to forthwith remove said shed from said premises * * *." The prayer was in accordance with the above allegations, except it was further prayed that defendants be enjoined from using said "premises for any purpose other than homestead purposes" and for general relief.

In a non-jury trial the Court gave judgment for plaintiffs against defendants, "restraining and enjoining them and each of them from operating or permitting to be operated on said lots 7 and 8 in Block 1, Ragsdale Addition to the City of Brownwood, a furniture repairing and upholstering business and from using said lots for any purpose other than residential purposes including the right to construct such out building as is necessary to the use of said lots for residential purposes, and the business now being operated thereon by the Defendant Oliver Allman shall cease and be removed from the shed now on said premises within 20 days from date of final judgment."

The defendants have appealed.

It is believed we can best state our conclusions without separate mention of the several points, but in such way as to express our opinion on the merits of all the questions raised.

As we see it, no important question is controlled, or materially affected,...