Curlee v. Walker

• Decision Date: 04 October 1922
• Docket Number: (No. 3465.)
• Citation: 244 S.W. 497
• Court: Texas Supreme Court
• Parties: CURLEE et al. v. WALKER et al.<SMALL><SUP>*</SUP></SMALL>

Page 497

244 S.W. 497

CURLEE et al. v. WALKER et al.^*

(No. 3465.)

Supreme Court of Texas.

October 4, 1922.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Suit for injunction by W. S. Curlee and others against Mark D. Walker and another. Decree dissolving temporary injunction and dismissing petition affirmed by the Court of Civil Appeals, and on motion for rehearing the question whether the trial court erred in dissolving the injunction was certified to the Supreme Court. Question answered in the affirmative.

Bonner, Bonner & Sanford and Wm. N. Bonner, all of Wichita Falls, for appellants.

Weeks, Morrow, Francis & King, of Wichita Falls, for appellees.

PIERSON, J.

The following facts taken from the certificate of the Honorable Court of Civil Appeals for the Second District will be sufficient for a proper understanding of the case before us:

On May 3, 1909, the Floral Heights Realty Company, a private corporation, laid out, platted and designated an addition to the city of Wichita Falls known as the "Floral Heights Addition," and filed its plat for record in the deed records of Wichita county. Thereafter, on February 2, 1910, it set apart some 18 blocks in the addition as a restricted district. It had suitable resolutions prepared and spread upon its minutes, and the following stipulation inserted in all of its deeds to lots within this restricted area, to wit:

"And the further consideration to which the grantee herein by the acceptance of this deed assents and agrees; that the lots hereby conveyed shall not within a period of ten years from this date be used for any other than residence purposes, that no residences shall be constructed on this property in excess of one residence to two whole lots as herein described; that no sale shall be made of the property hereby conveyed, of less than two whole lots, and that no residence shall be built on the lots hereby conveyed that costs less than $3,000, and this conveyance is made upon the condition that the grantee and his vendees shall comply with the foregoing requirements, and that if the vendee or any future owner of all or any part of the property hereby conveyed shall fail to observe said conditions that all or so much of the property hereby conveyed as shall belong to any owner guilty of such breach shall at once revert to and the title thereof be revested in the grantor herein or its successors or assigns, provided, however, that the building of a servant house to be used only by servants of the owner of the lots shall not be considered as a breach of the conditions hereof."

This general scheme or plan of creating a restricted residence district was adopted because it was thought that such building restrictions would make the property more attractive and valuable to purchasers, and it was contemplated that all the lots in the restricted area would be sold within two or three months. Within the following two or three months, more than one-third of the lots contained in the restricted area were sold, and all the deeds contained the above set out building restriction clauses. Thereafter practically all the lots in the restricted area were sold to different purchasers, and on different dates, extending down to January, 1919, at which time the Floral Heights Realty Company was dissolved and its charter surrendered.

W. S. Curlee and eight others, who a short time prior thereto and at different dates had purchased lots in the restricted district, instituted this suit against Mark D. Walker and the Walker Building & Loan Company, who had bought two of the lots about one year prior to the institution of the suit, to restrain them from building a second house on their two lots, one house having already been built thereon by them. The appellants alleged in their petition the creation of the restricted district under the "general scheme and plan" above set out, and the proof showed that the "general scheme and plan" was well known to the appellees, and that the deed to them contained the same stipulations as contained in all the other deeds. The trial judge granted a temporary injunction, restraining the appellees from building the house complained of, but later, upon motion and answer of the appellees, dissolved the injunction and dismissed appellants' petition. Upon appeal from that judgment the Court of Civil Appeals affirmed the judgment of the district court, upon the theory that after 10 years from the first purchases of lots the restrictive plan as applied to the entire property became...