Green v. Gerner

• Decision Date: 12 January 1927
• Docket Number: (No. 876 - 4629.)
• Citation: 289 S.W. 999
• Parties: GREEN et al. v. GERNER et al.
• Court: Texas Supreme Court

289 S.W. 999

GREEN et al. v. GERNER et al.

(No. 876 - 4629.)

Commission of Appeals of Texas, Section A.

January 12, 1927.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit for injunction by Charles J. Gerner and others against Joe M. Green and another. An order granting a temporary injunction was affirmed by the Court of Civil Appeals (283 S. W. 615), and defendants bring error. Judgment of the Court of Civil Appeals affirmed.

Vinson, Elkins, Sweeton & Weems, of Houston, for plaintiffs in error.

Campbell, Myer & Simmons, of Houston, for defendants in error.

NICKELS, J.

This is a "building restriction" case, in which an order granting temporary injunctive relief against the construction of an apartment house was affirmed by the honorable Court of Civil Appeals (283 S. W. 615), and in which writ of error was granted upon assignments presenting that the deeds in question do not so operate, of their own force, as to preclude right to erect the building. We believe the restrictive language of the deed was properly interpreted by the honorable Court of Civil Appeals, but it seems to us an improper effect was assigned thereunto.

Judged by their own terms, each of the deeds in question is intimate to the grantor and grantee therein named, and the restrictive language evidences an agreement between those parties in respect to future use of the particular lot therein described. There is in the deeds no evidence of covenants, conditions subsequent, or agreements wth mutuality as between the various grantees, or as between any grantee and the vendor as representative of any other grantee. The liberty which belonged to the parties enabled them to contract as they saw fit in relation to a lot then being conveyed, and for aught that appears in the language of the deed the grantor retained the liberty to forego and waive the restrictive covenant or condition stipulated by him. Hence the restrictions in the deed under which plaintiffs in error hold do not operate so as to give the owners of other lots the right to object to and prevent erection of the building in question; for the general rule is that only the grantor or those having his rights may enforce such covenants or conditions.

In such a case owners of vicinal lots are not without rights, if properly circumstanced; but their rights must rest in something extrinsic the deeds. What conditions will justify the interposition of equitable power to redress those rights is sufficiently shown in Curlee v. Walker, 112 Tex. 40, 244 S. W. 497. And none of those conditions are...