Crump v. Perryman

• Citation: 193 S.W.2d 233
• Decision Date: 25 January 1946
• Docket Number: No. 13663.,13663.
• Parties: CRUMP et ux. v. PERRYMAN et al.
• Court: Court of Appeals of Texas

Page 233

193 S.W.2d 233

CRUMP et ux. v. PERRYMAN et al.

No. 13663.

Court of Civil Appeals of Texas. Dallas.

January 25, 1946.

Appeal from District Court, Grayson County; Jesse F. Holt, Judge.

Suit by H. B. Perryman and others against A. R. Crump and wife for injunction enjoining defendants from violating certain restrictive covenants contained in a prior instrument of dedication executed by owners of land comprising an addition to City of Dennison. From a judgment for plaintiffs, the defendants appeal.

Affirmed.

Harry E. Kain, of Denison, for appellants.

O. H. Woodrow, of Sherman, for appellees.

YOUNG, Justice.

The suit of appellees, Perryman and four other residents of Oakdale Addition to the City of Denison, was for temporary and final relief by way of injunction against A. R. Crump and wife, also lot owners; alleging the violation of certain restrictive covenants contained in a prior instrument of dedication executed by owners of the land comprising said addition. Following interlocutory order and upon trial to the court, a judgment of final injunction was rendered prohibiting appellants from erecting a garage apartment upon the rear of their lot before building a permanent residence; from which record of proceedings and order this appeal is taken.

No complaint is made of insufficiency of evidence to support above rendition; and as the judgment of District Judge Holt embodies all material facts incident thereto, same are here quoted inclusive of his conclusions of law: "That the plaintiffs are the owners of the property claimed by them in plaintiffs' original petition, and that the defendants are the owners of Lot 5 in Block 2 in the Oakdale Addition to the City of Denison; that all of the lots in the Oakdale Addition with the exception of Lot 1, Block 1, and Lots 1 and 2 in Block 5, prior to the acquisition of the title by any of the parties hereto were owned by Mrs. Leta Camp and W. L. Foxworth, and that they are the common source of title to all of the lots in said addition with the exception mentioned above; that prior to the acquisition of title to any of these lots by any of the parties hereto, Mrs. Leta Camp and W. L. Foxworth filed of record in the Deed Records of Grayson County, an instrument in writing recorded in Vol. 409, page 229 on February 25, 1939,—the covenant set out in plaintiffs' original petition burdening said property with the restrictions therein set forth, among which is the following: `No garage, garage apartment, shacks or tents shall be erected and used for living quarters before the erection of permanent residence.' The court finds that the defendants have commenced the construction of a garage apartment on Lot 5, Block 2 of said addition for the admitted purpose of using said garage apartment for living quarters before the erection of a permanent residence on said lot. Among the provisions of the aforesaid covenant filed by Mrs. Leta Camp and W. L. Foxworth in the Deed Records of Grayson County, is the following provision: `If the parties hereto or any of them or their heirs or assigns shall violate any of the covenants or restrictions herein before January 1, 1964, it shall be lawful for any person or persons owning any others lots in said development or subdivision to prosecute any proceedings at law or in equity against the person or persons violating or attempting to violate any such covenant or restrictions and either to prevent him or them from so doing or to recover damages or other dues for such violation.' The court finds that the building of a garage apartment at the rear of the lot in question for the admitted purpose of using the same for living quarters before the erection of a permanent residence is a violation of said covenant; that said covenant is binding upon the defendants and that the plaintiffs have the right to enjoin such violation. The plaintiffs have in addition to pleading the restrictive covenants aforesaid, also pled a violation of the Denison Zoning Ordinance, but the court does not deem it necessary nor does it pass upon the issue of whether or not the building now under construction and its admitted intended use is violative of said zoning ordinance, but is of the opinion that the plaintiffs are entitled to an injunction to prevent the violation of the restrictive covenant which was and is a burden upon all lots in said addition with the exception of those especially exempted therefrom. It is therefore, ordered, adjudged and decreed by the court that the defendants, A. R. Crump and his wife, Willie Lee Crump, should be and they are hereby enjoined from further construction of the garage apartment upon said lot until a permanent residence is erected thereon in conformity with the restrictive covenant, and they are further enjoined from using said garage apartment for living quarters before the erection of a permanent residence on said lot."

Appellants' grounds of appeal are three in number, recited...