Godley v. Weisman

• Decision Date: 05 May 1916
• Docket Number: No. 19714 [15].,19714 [15].
• Citation: 133 Minn. 1,157 N.W. 711
• Parties: GODLEY v. WEISMAN.
• Court: Minnesota Supreme Court

133 Minn. 1

157 N.W. 711

GODLEY

v.WEISMAN.

No. 19714 [15].

Supreme Court of Minnesota.

May 5, 1916.

Appeal from District Court, Hennepin County; John H. Steele, Judge.

Action by Elizabeth T. Godley against I. Weisman. From a denial of new trial, defendant appeals. Affirmed.

Syllabus by the Court

A deed to ‘lot 11’ and other lots contained a covenant that the deed was subject to building restrictions contained in a prior deed which conveyed only lot 11. This adopted the building restrictions in the former deed and applied them to all lots conveyed by the later deed so far as the restrictions could be made applicable thereto.

Where the owner of a lot subject to no building restrictions conveys it and in the deed inserts restrictive covenants, these covenants cannot, in the absence of some general building plan, be regarded as inuring to the benefit of lots previously conveyed by him, and prior grantees cannot enforce such restrictions. Where, however, a number of lots in the same locality, and some contiguous to others, were conveyed by a single deed containing building restrictions applicable to all, and the grantee conveyed one tract to plaintiff and later a contiguous tract to defendant, and in each deed incorporated the building restrictions under which he held his title, these transaction evince a purpose to adopt a general building plan. An owner need not have a multitude of lots in order to have a building plan. He may have such plan for two lots as well as for more.

Where there is a general building plan with restrictions, the restrictions are for the benefit of all of the land subject thereto, and each grantee of any part of the land may enforce the restrictions against his neighbor.

Plaintiff has not forfeited her right to enforce a restriction against the building of duplex houses by the fact that a one-story sun room or porch of her house extends beyond the building line, the main portion of her house being within the line. Cohen, Atwater & Shaw, of Minneapolis, for appellant.

Roberts & Strong, of Minneapolis, for respondent.

HALLAM, J.

The easterly half of block four of Lake of the Isles addition to Minneapolis is divided into 11 lots 100 feet in width, numbered consecutively from 1 to 11.

On May 17, 1912, William McK. Parbour executed a deed conveying lot 11 in block 4 to Charles G. Gates. This conveyance was made--

‘subject to the following building restrictions, which shall run with the land and be binding upon the grantee herein and his heirs and assigns, viz.:

‘No. 1. That said premises, when improved, shall be improved by the erection of either one or two buildings, and if garages are desired, by the erection of either one or two garages in the rear of said dwellings.

‘No. 2. The front foundation of said dwelling or dwellings, exclusive of proch, shall be placed forty (40) feet and six (6) inches back from the front line of said lot eleven (11), and that said dwelling or dwellings shall face Lake place, but permit of an entrance on West Twenty-Fifth street, and shall not be what is known as a duplex or flat building or store, or be arranged for more than one family for each dwelling.

‘No. 3. That whatever dwelling is erected on said premises shall cost, exclusive of lot and garage, not less than five thousand ($5,000,00) dollars.’

On November 18, 1914, Gates having died, his devisees executed a deed without warranty conveying to Frank P. Hopwood lot 11, part of lot 10, lot 5, and the southerly portion of lot 4, in block 4, and lots 7, 8, and 9 in block 14. This conveyance was made subject to ‘the building restrictions and limitations' contained in the deed from Barbour to Gates.

On December 21, 1914, Hopwood executed a deed conveying the northerly half of lot 5 in block 4 to plaintiff subject to ‘the building restrictions' contained in the deed from the Gates' devisees to himself ‘with reference to above-described property.’

On August 14, 1915, Hopwood executed a deed conveying the southerly portion of lot 4 in block 4 to defendant, and inserted therein a provision that the conveyance was made ‘subject to the building restrictions and limitations' contained in the deed from Barbour to Gates. This tract is contiguous to that coveyed to plaintiff.

Plaintiff has erected a dwelling house upon her property, at an expense of nearly $10,000, in which she resides with her family. Defendant is about to erect a duplex, or ‘two-family’ residence, upon his property. Plaintifff brought this action to enjoin defendant from building a duplex, and the trial court granted a permanent injunction forbidding its erection. Defendant moved for a new trial and appealed from an order denying his motion.

Whether plaintiff is entitled to an injunction depends upon the force and effect to be given to the above four deeds. Plaintiff's claim rests upon the contention that by virtue of the provisions inserted in the above deeds she has acquired the right to compel defendant to comply with the building restrictions contained in the deed from Barbour to Gates. In order to sustain her contention, plaintiff, not being in privity with defendant, must establish that these restrictions were imposed upon the property owned by defendant, and were imposed thereon for the benefit of the property owned by herself. McNichol v. Thwnsend, 73 N. J. Eq. 276,67 Atl. 908;Hays v. St. Paul M. E. Church, 196 Ill. 633, 63 N. E. 1040.

[1] 1. Defendant contends that the deed from Gates to Hopwood, by incorporating the building restrictions contained in the Barbour deed, imposed those restrictions only upon lot 11, the lot conveyed by the Barbour deed. The...