Foos v. Engle

• Decision Date: 18 June 1943
• Citation: 295 Ky. 114,174 S.W.2d 5
• Parties: FOOS v. ENGLE et al.
• Court: Kentucky Court of Appeals

174 S.W.2d 5

295 Ky. 114

FOOS v. ENGLE et al.

Court of Appeals of Kentucky

June 18, 1943

Rehearing Denied October 8, 1943.

Appeal from Circuit Court, Madison County; William J. Baxter, Judge.

Action by F. A. Engle and others against Lillian Foos to enjoin maintenance of a trailer camp on certain lots and erection of a bathhouse and toilet building on an adjoining lot. From so much of the judgment as enjoined erection of the bathhouse and toilet, defendant appeals; and, from so much of the judgment as denied an injunction against maintenance of the trailer camp, plaintiffs cross-appeal.

Affirmed on defendant's appeal, and reversed in part on cross-appeal.

Carl F Eversole and John Noland, both of Richmond, and O'Rear &amp Prewitt, of Frankfort, for appellant.

H. O Porter, of Richmond, for appellees.

TILFORD Justice.

The appellees, individually, are the owners of residences in what is known as Wellington Subdivision in the City of Richmond. Appellant is the owner of five lots Nos. 42, 43, 44, 45 and 46.

The object of this action, instituted by appellees, was to enjoin appellant from maintaining a "trailer camp" on Lots 44, 45, and 46, and from erecting a one-story frame structure on Lot 43 to be used as a bathhouse and toilet in connection there with. The Chancellor decided that Lots 44, 45, and 46 were not covered by the building restrictions which appellees sought to enforce, but that Lots 42 and 43 were. Accordingly, he enjoined the erection of the bathhouse and toilet on Lot 43 but declined to enjoin the use of Lots 44, 45, and 46 for a trailer camp. Appellees, by crossappeal, seek a reversal of so much of the judgment as holds that the use of Lots 44, 45, and 46 is not subject to restriction. Appellant, of course, complains only of so much of the judgment as restricts her use of Lot 43.

The questions involved are not without difficulty, and their solution requires a somewhat extended review of the facts. Prior to August 29, 1928, the property, now comprised within the Subdivision and consisting of a residence and 8.26 acres, was owned by appellant and two of her aunts, and was heavily encumbered by a mortgage to the Louisville Title Company. On that date the three owners conveyed the property in trust to the Consolidated Realty Company "for the purpose of subdividing and selling said property at public auction on such terms, conditions, and stipulations as it may deem to the best interest of all concerned", and upon the condition that there should be executed, simultaneously with the deed, a contract, whereby the Realty Company would "undertake to plat and sub-divide the herein above described property for the purpose of selling the same at Public Auction through its Auction Department at a date to be agreed upon between the parties hereto". The contract was executed as stipulated, and contained, in addition to other details, the following:

"The parties of the second part agree to immediately take charge of said land, subdivide and plat same into lots, streets and alleys in such manner as in its opinion may seem best, and thereafter and on or before October 1, 1928, it will sell same at public auction to the highest and best bidder or bidders on such terms and conditions, including stipulations, restrictions and reservations as to the use of the land as in its judgment may seem best. * * *

"It is agreed that Lots 36, 37, 38 and 39 as shown on plat, which front 169.5 on the north of a new court 125 feet on the west side of Third Street are hereby reserved and excluded from said sale. Also excluded is a lot directly north of said lots fronting along Third Street.

"Provided, however, that the sale of the remaining lots in said property which shall be offered first, shall have realized a sufficient sum to pay the indebtedness due the Louisville Title Company and any other indebtedness against said property, and also to pay the commission of the parties of the second part as hereinafter provided for, on all of the lots sold up to that time. In the event the sale of such lots shall not realize enough to pay such encumbrances and commission of second parties then second parties shall have the right to offer for sale any of the lots above reserved.

"It is agreed in the event said property does not have to be sold, that said Trustee will have the property surveyed and divided into six lots, three of which shall front on the new court as shown on new plat and three front on Third Street. Second parties agree to deed two of said lots to each Lillian Theophanis, Belle Walker, and Jennie Walker Held upon written request at the close of sale by the interested parties. It is agreed by the second parties that there is to be no commission and no charge of any kind for the handling of said six lots, except as above provided.

"Also graveyard lot is to be excluded and deeded without charges equally to the above three parties mentioned. * * *

"It is further agreed that in addition to the hereinabove referred to restrictions, stipulations and reservations, that the improvements on the lots fronting on Lancaster Avenue shall cost not less than $4000.00;

"That the lots in the court facing Lancaster Avenue, when improved, the improvements shall cost not less than $4000.00; and the improvements on all other lots in the court shall cost not less than $3500.00, except the improvements on the lots fronting west on the East side of Third Street shall cost not less than $3000.00. The lots on Second Street will be conveyed without building restrictions."

It should be explained that the property conditionally reserved from sale by the terms of the contract was designated on the plat prepared and recorded by the Realty Company as Lots 41, 42, 43, 44, 45, and 46. It should also be noted that the deed referred to was immediately recorded, but that the contract never was. In order that conveyances might be made to the purchasers at the auction sale, the deed of trust to the Realty Company, as well as the previously executed deed of trust to the Title Company to secure its indebtedness, were rescinded, and the three joint owners again conveyed the property to the Realty Company, this time, by an absolute deed which recited: "Whereas, the property above described has been subdivided into lots, and streets and alleys created and dedicated to public use, by the second party, acting as Trustee under deed dated August 29, 1928, and recorded in the office a foresaid in Deed Book 105, page 6, and designated as Wellington Place, on a plat of the said Subdivision filed by said Consolidated Realty Company, Trustee, in the office aforesaid, dated and recorded in Plat Book 1, page 33, and said subdivision of said property, and said plat are hereby approved, confirmed and adopted by the parties hereto."

Enough was raised at the auction sale to discharge the indebtedness without selling the property conditionally reserved to the owners by the contract of August 29, 1928, and accordingly, on November 1, 1928, the Realty Company conveyed to appellant two of the six lots into which the reserved property had been platted, Lots 41 and 45, the deed reciting:

"As a further consideration for this conveyance the party of the second part agrees that the following restrictions as to the use and improvement of the property herein conveyed shall be observed herself, her heirs and assigns, to wit:

"(1) All improvements upon Lots 1 to 11, and Lots 28 to 43 inclusive, when erected shall be used for residence purposes only, and the front wall of said residences including bays but exclusive of any projecting porches, must be set on or back of the building line as shown

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