Finley v. Carr
| Decision Date | 18 November 1954 |
| Docket Number | No. 3213,3213 |
| Parties | M. S. FINLEY et al., Appellants, v. R. W. CARR et al., Appellees. |
| Court | Texas Court of Appeals |
Mixson, Haley & Bates, Waco, for appellants.
Scott, Wilson & Cureton, Waco, for appellees.
This suit involves the construction of restrictions in a deed. Plaintiffs, who are the appellees here, are the owners of lots on the south side of Homan Avenue between 33rd and 35th Streets, and the defendants are the owners of lots on the north side of Bosque Boulevard between 33rd and 35th Streets, this property being located in Blocks 30 and 31 in Highland Place Addition to the City of Waco, plaintiffs' property constituting the north one-half of said blocks which front north on Homan Avenue and extending to the south to an alley; defendants' property constituting the south one-half of said blocks fronting south on Bosque Boulevard and extending north to the alley. Plaintiffs brought this suit to enforce by declaratory judgment and injunction restrictive covenants contained in the deeds to each of defendants' lots, alleging in effect that such provisions restricted the use of each lot to residential purposes only. The defendants, for themselves and as representatives of a class (all property owners in Highland Place Addition to the City of Waco) answered and filed cross actions seeking a declaratory judgment to the effect that all lots in Highland Place Addition are free of the restrictions contained in the deeds.
The jury in its verdict found substantially (1) that a general plan or scheme was adopted for the development of Highland Place Addition that restricted substantially all lots in the Addition to use for residential purposes only; (2) that there has not been a change of circumstances, conditions and surroundings as it relates to lots 8 through 14, block 31, and lots 9 through 16, block 30, Highland Place Addition after such restrictions were placed upon such lots.
The trial court granted plaintiffs' motion for judgment, and granted them the relief they prayed for and denied appellants all of the relief they prayed for. In the judgment we find this recital: '* * * the court, after considering the pleadings, the findings of the jury, and the evidence, is of the opinion that the plaintiffs and cross-defendants are entitled to a declaratory judgment; that the defendants and cross-plaintiffs, and each of them, and the lots in Highland Place Addition to the City of Waco, which each defendant and cross-plaintiff owns, are bound by the restrictions in the respective deeds; that the lots will be used for residential purposes only.' The court decreed that appellees have judgment against appellants and after naming them said: '* * * are each bound by such restriction, and that such restriction prohibits the use of said lots, or any part thereof, for business or commercial purposes, * * *.'
Appellants seasonably filed their motion for new trial, and it being overruled, perfected their appeal.
The judgment entered is assailed on substantially the following points: (1) the court failed to submit the ultimate issue to the jury as to whether it was the intention of the original grantor and the respective grantees to such lots that such restrictions placed in the deeds should inure to the benefit of the vicinal lot owners, or whether such restrictions were personal as between the original grantor and his respective grantees; (2) that the answer of the jury to Special Issue No. 2 is not supported by the evidence; (3) that the court erred in failing to grant a new trial because there was no evidence to support the jury's answer to Special Issue No. 2; and (4) because the evidence is insufficient to support the jury's answer to Special Issue No. 2. We are not in accord with these views.
Appellees' reply is substantially to the effect that (1) the jury's finding that a general plan or scheme was adopted for the development of Highland Place Addition that restricted substantially all of the lots in the Addition to use for residential purposes only and this fact determined the ultimate issue of fact in the cause; and that any related issue not submitted must be presumed to have been found by the court in support of the judgment; (2) that the evidence is sufficient to support the jury's finding and on such verdict that no judgment could have been entered in favor of the appellants because the undisputed evidence showed that no changes of any consequence had taken place within the Highland Place Addition. We are in accord with these views.
A comprehensive statement is necessary. Highland Place Addition contains 36 blocks; 32 of the blocks were platted into a total of 426 separate lots; four of the blocks were not subdivided into lots but were sold to the Academy of the Sacred Heart, in part consideration of the grantee's agreement to erect and maintain a school for white children only; conveyance of these lots were made from 1911 through 1939. Pertinent to this discussion the property was owned by A. W. Koch and Jas. L. Mistrot as partners; the plat was filed for record July 25, 1911; on September 14, 1912 the partnership conveyed the property to A. W. Koch Company, a private corporation. The deed was expressly conditioned that the grantee in the sale of all lots bound itself, its successors and assigns, to specify in each deed the restrictions placed on each lot, including the restriction that it would be used for residential purposes only. Thereafter, 423 of the 426 lots were conveyed by deed, each containing the identical and uniform restriction set out in the deed to A. W. Koch Company, corporation. We quote the pertinent parts of the restriction:
'The conditions referred to above and upon which this conveyance is made is that, in the sale of all lots hereby conveyed, A. W. Koch Company, binds itself, its successors and assigns to specify in all deeds as follows:
'1st: That said lots shall be used for residential purposes only and by white persons only '2nd: That no residence shall be erected on said lot, if on Colcord Boulevard, which does not cost as much as $4000.00,...
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