Davis v. Congregation Shearith Israel

• Decision Date: 23 September 1955
• Docket Number: No. 14995,14995
• Citation: 283 S.W.2d 810
• Parties: J. C. DANIS, et al., Appellants, v. CONGREGATION SHEARITH ISRAEL, Appellee.
• Court: Texas Court of Appeals

Page 810

283 S.W.2d 810

J. C. DANIS, et al., Appellants, v. CONGREGATION SHEARITH ISRAEL, Appellee.

No. 14995.

Court of Civil Appeals of Texas, Dallas.

Sept. 23, 1955.

Rehearing Denied Nov. 18, 1955.

Grady, Johnson, Bell & Lee, Dallas, for appellants.

Henry W. Strasburger, Royal H. Brin, Jr., Charles Marcus, Meyer Ungerman, H. M. Oster, Levi Topletz, Elihu E. Berwald, Max R. Rosenfield, and J. Manuel Hoppenstein, Dallas, for appelee.

DIXON, Chief Justice.

This is a suit for declaratory judgment instituted by appellee Congregation Shearith Israel against 39 defendants as class representatives under Rule 42, Texas Rules of Civil Procedure. The Congregation sought a judgment declaring that its 11.9 acre tract of land is not burdened with deed restrictions that would prevent the erection and use of improvements for church and religious educational purposes. Following a jury trial and a judgment in favor of the Congregation, 12 of the defendants have appealed. ¹

Appellants contend that this type of action cannot properly be brought as a class suit. The basis for this contention is that certain property owners, not made parties to the suit, are necessary and indispensable parties because the court is required to determine whether their property is subject to restrictions.

We believe appellants' contention is based on an erroneous premise. Neither the trial court nor this Court is called on to decide whether property owned by other persons than appellee is subject to restrictions. The only purpose of this suit so far as deed restrictions are concerned is to obtain an adjudication as to whether appellee's 11.9 acre tract of land is subject to restrictions as contended by a designated class of persons.

Appellee in appropriate class action pleadings alleges that though none of the deeds in its chain of title contains any restrictions whatever, it is faced with wrongful interference from a class of persons who assert that appellee's property is subject to restrictions (1) by virtue of a general plan and scheme of restrictions adopted by J. V. Wright applicable to all property in his original 122 1/2 acre tract of which appellee's land is a part; and (2) by virtue also of the provisions of the so-called Hambecker Correction Deed, whereby Wright expressly set up a plan and scheme of restrictions to be applicable to 'surrounding property owned by the said J. V. Wright,' which provisions are binding on all subsequent purchasers from and through Wright, including appellee. In our opinion appellee's pleadings and the facts and circumstances of the case properly present a class suit. Womack v. Dean, Tex.Civ.App., 266 S.W.2d 540; Faubian v. Busch, Tex.Civ.App., 240 S.W.2d 361 (Ref. n. r. e.); Lowrance v. Woods, 54 Tex.Civ.App., 233, 118 S.W. 551. We overrule appellants' points Nos. 3, 4, 5, 6, 7, 8, and 9.

Many years ago when J. V. Wright, now deceased, acquired the 122 1/2 acre tract, it was farm land located several miles from the City of Dallas. As the City grew and expanded the acreage gradually changed in character from primarily farm land to property adaptable to suburban residential purposes. In the year 1933 Wright began selling lots and tracts suitable for residential purposes and by the year 1945, when he died, had disposed of most of his 122 1/2 acres. The first group of lots he sold was not designated as an addition. Later a second group and still later a third group of lots were designated by Wright as Inwood Addition No. 1 and Inwood Addition No. 2 respectively. A fourth group of lots sold by Wright lay to the east of Inwood Addition No. 2 and between that Addition and the 100 ft. right-of-way of the St. Louis and Southwestern Railroad, known as the Cotton Belt Railroad. The 11.9 acre tract in controversy, part of Wright's original 122 1/2 acres, lies east of the railroad right-of-way and is separated from the rest of the original 122 1/2 acres by the railroad's property. Wright did not subdivide this acreage. In 1945 he conveyed it to his daughter-in-law, surviving widow of his deceased son, the deed containing no restrictions. In 1953 the daughter-in-law sold the tract, still not subdivided, to appelee, this deed also containing no restrictions.

Meantime the City of Dallas had continued to grow and expand. Some time ago the City annexed an area which included all of Wright's original 122 1/2 acre farm. The first group of lots sold by Wright was given a designation as City Block No. 5601. Inwood Addition No. 1 became City Blocks Nos. 5602, 5603, and 5604. Inwood Addition No. 2 became City Blocks Nos. 5605, 5606, and 5607. The fourth group of lots, including the Hambecker lot, became City Block No. 5608. The 11.9 acre tract on the other side of the railroad, the land in controversy, became City Block No. 5609.

J. V. Wright did not dedicate his entire 122 1/2 acres as one unit or real estate addition, or officially file any map or plat for record in which the whole 122 1/2 acre tract is shown as one addition. However for purposes of clarity we present herewith a map or plat of the whole 122 1/2 acres and its subdivision as of the date of the trial.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It is our opinion and we hold that as a matter of law the undisputed evidence shows that J. V. Wright did not adopt a general plan or scheme of restrictions applicable to his entire 122 1/2 acre tract, including appellee's property. In an instrument dated February 2, 1937 specifically referring to but obviously limited to Inwood Addition No. 1, Wright provided for certain restrictions, the instrument containing this language: 'in order to give record in evidence of our general plan and scheme for the development of said addition do hereby adopt the following restrictions governing the use of the property in said addition * * *'. (Emphasis supplied). We find nothing in this instrument referring to restrictions on land lying outside of Inwood Addition No. 1, as does appellee's land. In another instrument dated November 24, 1937 similar provisions were made as to Inwood Addition No. 2.

Moreover the instrument pertaining to Inwood Addition No. 1 contains this language: 'These restrictions, covenants and conditions shall terminate and be of no further effect after 35 years from date of November 27, 1936, unless sooner released by mutual consent of a majority of all the owners of lots or tracts in said addition.' Similar language is found in the instrument pertaining to Inwood Addition No. 2.

In our opinion the above two instruments conclusively negative the idea that there was any plan or scheme applicable to the whole 122 1/2 acres owned by J. V. Wright. For they expressly provide that deed restrictions in Inwood Addition No. 1, or in Inwood Addition No. 2 may be changed or abolished by a majority vote of property owners within either addition separately from and regardless of the property owners in the other addition, and separately from and regardless of the other property owners in other parts of Wright's original 122 1/2 acre tract. It is thus made apparent that there is no mutuality or reciprocal uniform covenant providing for a general plan or scheme of restrictions for the whole 122 1/2 acre tract as contended by appellants. Green v. Gerner, Tex.Com.App., 289 S.W. 999; Cannon v. Ferguson, Tex.Civ.App., 190 S.W.2d 831; Russell Realty Co. v. Hall, Tex.Civ.App., 233 S.W. 996; 12 Tex.Jur. 170. Appellants' points Nos. 12, 13, and 14 are overruled.

On August 23, 1943 Wright conveyed to N. J. Hambecker Lot 23 out of the middle portion of Block 5608. The deed contains no restrictions. On August 22, 1944 Wright and Hambecker both signed a document which appellants refer to as the Hambecker Correction Deed. By this instrument Hambecker agreed that his lot should be burdened with certain restrictions, including its use 'for private dwelling purposes only.' Wright on his part agreed as follows:

'This Agreement is entered into and executed in clarification of the original contract and agreement for the sale of said hereinabove described property from J. V. Wright and wife, Amy Elizabeth Wright, to N. J. Hambecker and for the further consideration that similar restrictions be placed upon other surrounding property owned by the said J. V. Wright and and when sold and disposed of and in further consideration that J. V. Wright shall restrict his use of said surrounding property owned by him in a like manner with this agreement and restrictions so long as he is the owner and user thereof, and shall not permit same to be used in any manner not consistent with the conditions hereinabove set out and made binding upon me by this agreement.' (Emphasis supplied).

At the time the above instrument was executed, J. V. Wright still owned the 11.9 acre tract now owned by appellee. He also still owned a few lots scattered through the other blocks of his original 122 1/2 acres. He owned no other property in the John Howell Survey, of which his 122 1/2 acre tract was a part. The record is silent as to whether he owned other property not in the John Howell Survey.

Did the Hambecker Correction Deed impose restrictions on appellee's property? In our opinion it did not. What constitutes 'surrounding property'? Certainly it cannot be reasonably said, and appellants do not contend, that other property owned by Wright literally surrounded Hambecker's lot. It is appellants' contention that the phrase 'surrounding property owned by the said J. V. Wright' means 'the remaining or all property owned by the said J. V. Wright in the neighborhood of and in any direction from...