Couch v. Southern Methodist University

• Decision Date: 18 December 1926
• Docket Number: (No. 9921.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 290 S.W. 256
• Parties: COUCH et al. v. SOUTHERN METHODIST UNIVERSITY et al.
• Court: Texas Court of Appeals

290 S.W. 256

COUCH et al. v. SOUTHERN METHODIST UNIVERSITY et al.

(No. 9921.)^*

Court of Civil Appeals of Texas. Dallas.

December 18, 1926.

Rehearing Denied January 15, 1927.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Suits by the Southern Methodist University and by E. D. Jennings and others to enjoin A. B. Couch and others from erecting business houses on restricted residential property. Suits consolidated. Temporary writ of injunction ordered issued, and defendants appeal. Affirmed.

Thomas, Frank, Milam & Touchstone, of Dallas, for appellants.

Cockrell, McBride, O'Donnell & Hamilton, of Dallas, for appellees.

JONES, C. J.

Southern Methodist University, duly incorporated as an educational institution, filed suit in a district court in Dallas county for the purpose of enjoining appellants A. B. Couch and F. E. Welfare and wife from the erection of business houses on property owned by them located in University Park addition, and, on presentation of a duly verified petition, a temporary restraining order was issued. Appellees E. D. Jennings, Mrs. L. Sneed, a widow, S. L. Barron, A. D. Schweissler, C. A. Nichols, and R. E. Dickinson, residents of University Park addition and owners of lots therein, also filed suit against appellants as defendants, seeking the same relief as in the other suit, and, on presentation of their verified petition, a similar restraining order was issued. In each of these suits appellants were notified to show cause at a named date why such restraining order should not continue as a temporary writ of injunction.

Appellants answered each suit by motion to dissolve the restraining order and by answer to the merits. These two suits were consolidated and the motion to dissolve, as well as the application for the granting of a temporary writ of injunction, was heard, with the result that the motion to dissolve was overruled and a temporary writ of injunction was issued. Appellants have duly perfected their appeal from such orders.

For convenience, appellee the Southern Methodist University will be styled "University" and the other appellees herein "appellees." The suits are based on the following facts:

The University conducts the character of educational institution suggested by its name, and has erected and uses suitable buildings for such purpose, on a campus of 133 acres. The western boundary of this campus is Hillcrest avenue, a street running north and south. Included in the land it owned adjacent to its campus was a tract of approximately 73 acres. The eastern boundary of this tract is Hillcrest avenue.

In 1913, the University concluded to have this tract of land platted into blocks and lots and conveniently laid out in streets and alleys for the purpose of placing it on the market as an addition to the city of Dallas, and entered into a contract with Dallas Trust & Savings Bank to act as its trustee in carrying out this purpose, and later, in 1914, executed a deed of conveyance to its said trustee, placing the legal title of the tract of land in said trustee for such purpose. The contract entered into in 1913 was not placed of record, but it contained a provision that —

"As soon as practicable after the execution of this contract, the parties will prepare and agree upon a schedule of prices and restrictions for and under which the lots are to be sold. * * *"

The deed executed on July 1, 1914, for the purpose of carrying out this contract, recited that it was executed for such purpose, gave to the grantee as trustee full power of sale, and further provided that any purchaser of a lot from said trustee "shall not be bound to inquire into the terms of said contract nor in anywise to see to the application of the purchase money." The property was duly platted in blocks and lots and streets and alleys duly laid out, and on March 27, 1915, the dedication deed, including a map of the blocks, lots, and streets, was placed of record, and the addition designated as "University Park addition to the city of Dallas."

The streets in the said addition running north and south are in their order from the east side of said addition: Hillcrest avenue, Dickens, Thackeray, and Golf drive. Those extending east and west and terminating in Hillcrest avenue, beginning from the south side, are: Roberts, University boulevard, and Hainey avenue. Adjacent to the lots in this addition is what is styled "Installment No. 2 of University Park," which was platted by the University as a business district. Restrictive covenants were agreed upon by the parties and the property was extensively advertised as a restricted resident district. All of the lots sold by the trustee contained the hereinafter described restrictions.

On September 9, 1920, the trustee re-deeded the unsold lots in said addition to the University. On the same date, the University deeded to N. H. Martin a large number of lots in said addition, still retaining ownership in a number of lots unsold. This deed to Martin did not contain the restrictive covenants that had been placed in all other deeds by the said trustee. The omission of the restrictive covenants in said deed was an oversight, and when this omission was discovered, and while Martin was the owner of all the lots he had purchased, an agreement was entered into between the parties in said conveyance, making the restrictive covenants applicable to such lots. This agreement was placed of record June 13, 1922. This instrument recited the fact that, prior to Martin's purchase of these lots, the above-named trustee had sold other lots in said addition to various other persons, subject to certain building restrictions, and that the failure to place the same building restrictions in Martin's deed was an oversight, and also recited that —

"It is to the mutual benefit of all parties hereto, as well as other owners of property situated in the above-numbered blocks, that proper building restrictions should be imposed upon the lots so sold to N. H. Martin."

The parties then declared that the restrictions therein named —

"shall apply to the lots so sold and conveyed by Southern Methodist University to N. H. Martin."

These restrictions are in effect the same that had been placed in all the deeds theretofore executed to lots in this addition. The restrictions are contained in 11 paragraphs and it is not considered necessary to give them in detail. Paragraph 2 declares that each lot shall be used for private residence purposes only and by white persons only. Paragraph 3 declares that no boarding fraternity, sorority, or apartment house will be allowed on any lot. The other paragraphs prescribe the minimum frontage of a lot, the character and cost of buildings that may be erected on a lot, this varying to some extent on certain streets, the position of the house to be erected, its distance from the street, the position and character of garages and servants' houses, the limitation of fences, as well as other things designed to beautify and ornament each lot on which a residence is erected. There is also a prohibition against the building of any house on the rear of any lot or facing on an alley for any purpose except servant house, stables, garages, etc., and for the use of the occupants of the main residence and their bona fide servants.

It was recited in the Martin agreement that —

"The above conditions and each of them shall be covenants running with the land and bind the same in the hands of subsequent vendees, however remote, and should any of said conditions be violated at any time within 21 years, the title to said land shall revert to the Southern Methodist University, its successors or assigns, as the case may be."

There is also contained in the said agreement the following provision:

"Provided, however, that at any time any of the above conditions so far as they affect the property on Hillcrest avenue between Roberts avenue and University boulevard; University boulevard between Hillcrest avenue and Dickens street; University boulevard between Dickens and Thackeray street; University boulevard between Thackeray street and Golf drive; Haynie avenue between Hillcrest avenue and Dickens street; and Haynie avenue between Dickens street and Thackeray street, may be amended by a vote of three-fourths...