Cleveland Baptist Assn. v. Scovil

• Decision Date: 13 February 1923
• Docket Number: 17389
• Citation: 140 N.E. 647,107 Ohio St. 67
• Parties: The Cleveland Baptist Assn. Et Al. v. Scovil Et Al.
• Court: Ohio Supreme Court

140 N.E. 647

107 Ohio St. 67

The Cleveland Baptist Assn. Et Al. v. Scovil Et Al.

No. 17389

Supreme Court of Ohio

February 13, 1923

Covenants - Deeds - Building restriction - Private residences only - Church edifice prohibited - Restrictions inserted in foreclosure decree - Purchaser at sheriff's sale bound when.

1. A realty company made an allotment of a large number of lots upon which it gave a blanket mortgage. Some of the lots were sold to purchasers by deeds containing various restrictions. Later, the mortgagor defaulted, and foreclosure proceedings were instituted wherein the mortgager and owners of the lots previously sold were made parties. The mortgagor and the mortgagee and all of the parties, except a few who were in default for answer, joined in a consent decree ordering the sale of the remaining lots with various restrictive covenants as to building erections. Plaintiff in error's predecessor in title purchased one of these lots at sheriff's sale and accepted a deed incorporating the restriction hereinafter named, and thereafter conveyed the premises to plaintiff in error by a deed embodying the same restriction. All other purchasers at judicial sale who have improved their lots complied with the restrictions imposed by said decree.

Held The purchaser at sheriff's sale and his successor in title, both of whom received deeds embodying the restriction are estopped from questioning the validity of the restrictions contained in their respective deeds.

2. The decree and deeds executed in pursuance thereof contained the following restriction applicable to one of the lots "Until January 1, 1934, said premises shall not be used for apartment or boarding house purposes, but shall be used for private residences only, including necessary out-buildings, garage and barn." This restriction is not doubtful in import and prohibits the erection of a church edifice on the lot.

- Many years ago the Euclid Heights Realty Company made an allotment of farm lands located in what is now known as the city of Cleveland Heights. The company then encumbered the allotment by a blanket mortgage. As the several lots in the allotment were sold to purchasers, deeds were executed to them containing various building restrictions, and the lots so sold were released from the blanket mortgage, the purchasers improving their several lots under the restrictions imposed by their respective deeds. This was done in pursuance of a general scheme for the development of the allotment, but the scheme was not uniform in requiring similar restrictions in lots deeded from time to time, as they were sold to purchasers. This continued until the mortgagor realty company defaulted in its mortgage. Foreclosure proceedings were commenced by the mortgagee on January 4, 1912, at which time a large number of lots remained unsold. A decree of foreclosure was entered on August 7, 1912. Part of the lots having been thereafter sold and improved under restrictions aforesaid, contention arose as to whether the remaining lots should be sold on judicial sale free of or subject to restrictions. The lot owners who had purchased were made parties and were served with summons or entered their appearance. Twenty-three remained in default for answer and took no part in the proceedings, nor did they approve or disapprove of a modified decree which was made on February 6, 1914, which undertook to impose restrictions on the lots to be sold under the judicial decree. The journal entry of that date recited that all of the parties who filed pleadings had consented that the remaining lots should be sold incorporating the restrictions imposed in the decree of February 6, 1914, which decree recited that the restrictions should go with the land and were to be binding upon the purchasers, their heirs, successors and assigns, and that they were for the benefit of all persons who might become owners of the property ordered to be sold.

Lot 176 involved in this controversy was subsequently sold and conveyed to one Philip A. Sampliner by a deed which contained the following restriction, being the same restriction incorporated in the decree, to-wit: "1. Until January 1 1934,...