Elterich v. Leicht Real Estate Co. Inc

• Decision Date: 16 June 1921
• Citation: 107 S.E. 735
• Parties: ELTERICH et al. v. LEICHT REAL ESTATE CO., Inc.
• Court: Virginia Supreme Court

107 S.E. 735

ELTERICH et al.

v.LEICHT REAL ESTATE CO., Inc.

Supreme Court of Appeals of Virginia.

June 16, 1921.

Appeal from Circuit Court, Norfolk County.

Suit by the Leicht Real Estate Company, Incorporated, against Kathryn E. Elterich and another. Decree for plaintiff, and defendants appeal. Affirmed.

This suit was instituted by the appellee against the appellants (who will be hereinafter designated plaintiff and defendants, respectively, in accordance with their positions in the court below), having for its object the obtaining of a permanent injunction restraining the defendants from proceeding with the erection of a certain building, alleged to be in violation of certain restrictions or conditions contained in the deed from plaintiff to one of the defendants, which conveyed to the latter the lot on which the building was being erected.

A preliminary injunction was granted on the filing of the bill; subsequently depositions were taken and filed in behalf both of plaintiff and defendants, and upon consideration of the cause on the merits the court below entered the decree under review, which granted the permanent injunction sought by the bill.

The material facts, the issues, and conflicts in the evidence are as follows:

The plaintiff is engaged in the business of developing a residential section known as Winona, located in Norfolk county, constituting one of the suburbs of Norfolk city. The plaintiff was chartered in 1909, acquired the ownership of the real estate in that section, subdivided it into lots, with streets and avenues, and undertook to build sidewalks, macadamize the streets and avenues, lay gas and water mains, provide a drainage and sewerage system, etc.,.and sold the lots to purchasers with certain restrictions and conditions contained in all of the deeds to purchasers. The purchasers united in the deeds. These restrictions and conditions were the same as those contained in the deed to the defendant Mrs. Kathryn E. Elterich, presently to be more specifically mentioned, except that about 5 years before this suit the words "apartment house" were added to the restrictions as contained in the sixth clause of the last-named deed.

By deed dated February 5, 1919, in which the defendant Mrs. Elterich united as the party of the second part, the plaintiff conveyed to such defendant, the lot above mentioned, subject to certain conditions and restrictions set forth in the deed, a portion of which are as follows:

"First. The property hereby conveyed shall not, for a period of twenty-one years, be sold, rented or otherwise disposed of to persons of African descent.

"Second. No intoxicating liquor or ardent spirits shall be sold upon the property hereby conveyed.

"Third. No swine shall be kept upon the property hereby conveyed.

"Fourth. Wood posts may be used in constructing fences on and around said property, but otherwise no wood fences shall be erected or placed on or around the property hereby conveyed.

"Fifth. Not more than one house, outbuilding excepted shall be erected or placed upon one lot designated on said plat, nor shall such house be erected or placed upon said property, except in conformity to the building line established by the said company, nor shall any house or any part thereof, except outside steps, be erected or placed within fifteen feet of the front of any lot shown on said plat.

"Sixth. No flat roofed or double house, storehouse, factory building or apartment house shall be erected or placed upon the property hereby conveyed, nor shall it be used for commercial or manufacturing purposes.

"Seventh. No residence shall be erected or placed upon the property hereby conveyed to cost less than four thousand ($4,000) dollars, and no house shall be erected or placed upon said property so as to throw the rear part thereof toward the side of any adjoining lot, and for a period of ten years from January 1, 1910, all dwelling houses erected upon said property shall be built according to plans submitted to the directors of said company and approved by them.

"Eighth. No stable shall be placed or erected upon any of the lots shown on said plat without the consent in writing of the said company as to the plans and location thereof; nor shall outbuildings be placed within seventy feet of the front of any lot shown on said plat, and no stable or outbuildings shall be erected or placed on any water front lot shown on said plat, except a garage, the plans and location of which shall be subject to approval of said company.

"Ninth. Live stock, owned or controlled by the said purchaser, shall not be permitted to roam beyond the boundary lines of such property as may be owned or controlled by said purchaser, nor shall such live stock be fastened to any trees upon the streets or avenues shown on said plat.

"Tenth. No use shall be made of the said property or any part thereof, which may constitute a nuisance or injure the value of any of the neighboring lots, and no sign boards shall be erected or placed upon said property, without the consent in writing of said company.

"Eleventh. All houses erected upon any lots shown on said plat shall, when required by the company, be connected by the owner thereof with such sewerage system as may be installed by the company, as herein provided.

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"Eighteenth. The said company shall not be required to enforce said conditions, restrictions, rules and regulations except so far as it has lawful right to enforce the same.

"The above restrictions and conditions shall be inserted in ail deeds of conveyance hereafter made by the said company. Except that required cost of house may be changed according to location.

"The said purchaser, in consideration of the premises, agrees and promises not to violate any of the aforesaid conditions, and it is hereby agreed that should the said purchaser violate the first of the above conditions, the said company shall, in addition to the remedies provided by law, have the right to re-enter for such breach of condition and be seized of its former estate, subject to the lien of any deed of trust created by said purchaser or —— successors to secure a debt hereafter contracted, and in the event of the violation of any of the other of the aforesaid conditions, the said company shall, in addition to all remedies provided by law, have the right of re-entry and abatement without liability for damages."

The bill quotes the sixth and seventh clauses of the restrictions or conditions in the deed, and alleges that the defendants had commenced the erection on said lot of a dwelling house according to certain plans, of which copies were filed with the bill, and that the erection of such home on such lot would be in violation of the sixth clause of said restrictions or conditions, in that such house would be a double house or an apartment house.

The testimony both for plaintiff and defendants concurs in showing that the house which the defendants were proceeding to erect, and which they claim by answer filed in the case and by their proof that they have the right under their deed to erect, was a two-story dwelling house, in addition to the basement, with but one outside front door and one outside back door, but both of such doors opened into front and rear vestibules, respectively, from which vestibules therewere separate front and separate rear entrances into two separate apartments; one apartment, on the first floor above the basement, consisting of a kitchen, dining room, living room, bathroom, water-closet and three bedrooms, together with a hall, pantry, and certain closets; and the other apartment, on the second floor, being the exact duplicate of the first floor with respect to the same number and size of rooms, including a bath room, water-closet, hall, pantry and closets; so as to be suitable for the separate occupancy of the building by two families, for living, cooking and eating therein; the front and rear entrances to the first-named apartment being on the said first floor, and such entrances to the second-named apartment being up front and rear stairways extending from the front and rear vestibules aforesaid to the said second story of the house.

The primary question in issue between the parties plaintiff and defendant is whether such a house is an apartment house within the meaning of the sixth covenant aforesaid in the deed; it not being contended for the plaintiff that the proof shows that such a house is a double house.

At the time the deed was executed, the plaintiff had sold a considerable portion of the lots in Winona, on quite a number of which dwelling houses had been erected and were occupied. During the World War and up to the time of such deed some 50 per cent, of such houses were occupied by more than one family, although with a single exception presently to be mentioned, they were not constructed so that the respective families could occupy separate apartments; but this was considered an exceptional condition, due to the scarcity of houses to accommodate the congested population in that section during that period. Even the president of the plaintiff company at that time rented to another family a portion of the residence in Winona in which he with his family lived during such period, and such renting was going on when defendants purchased said lot and the deed thereto was made. When such purchase and deed were made there was one, and but one dwelling house in Winona which was constructed for separate occupancy by two families. That was what is designated in the record as the "Neff" residence, which was a two-story house constructed into two separate apartments, one on the first and the other on the second floor. All the other dwelling houses in Winona, including that of the president of the plaintiff company, were constructed for the separate occupation of only one family. Many of them, however, were large enough for the joint occupancy of more than one family.

It does not appear from the evidence at what time the deed...