Greenwood Lodge, No. 118, I. O. O. F. v. Hyman

• Decision Date: 29 November 1937
• Docket Number: 32914
• Court: Mississippi Supreme Court
• Parties: GREENWOOD LODGE, No. 118, I. O. O. F., v. HYMAN

177 So. 43

180 Miss. 198

GREENWOOD LODGE, No. 118, I. O. O. F., v. HYMAN

No. 32914

Supreme Court of Mississippi

November 29, 1937

Division B

1 INJUNCTION.

The granting of an injunction to restrain the use of property should not be allowed, except where parties are irreparably injured in a pecuniary way.

2 INJUNCTION.

Under deed from common grantor merely requiring that if grantee erected a building it should be two stories high, and that the walls below the second story should be solid, purpose of which was to give grantor right to use one wall of a building for any building that grantor might erect on adjoining premises, plaintiff grantee who did erect building on adjoining premises held not entitled to an injunction to tear down a one-story building erected by defendant grantee on adjoining premises which was two feet higher than the building owned by plaintiff grantee and which contained no windows on the side facing plaintiff grantee's lot, where the carrying out of the decree would inflict hardship upon defendant grantee, and would confer no benefit of a substantial nature upon plaintiff grantee.

3 EQUITY.

An equity court will not enforce a decree imposing a hardship on one party merely to gratify a sentimental whim of another party.

4 PERPETUITIES.

Restrictions in deeds providing that grantees, if they erected a building, should erect one two stories high and that walls below second story should be solid and fixing no period for termination were perpetual and unenforceable as contrary to state's public policy, where there was no period or circumstances from which a reasonable period of duration could be determined.

HON. R. E. JACKSON, Chancellor.

APPEAL from the chancery court of Leflore county HON. R. E. JACKSON, Chancellor.

Suit by Mrs. Sarra L. Hyman against Greenwood Lodge, No. 118, I. O. O. F. From a judgment for plaintiff, defendant appeals. Judgment reversed, and cause dismissed.

Reversed and cause dismissed.

Jordan, Antoon & Peteet, of Greenwood, for appellant.

Conditions giving rise to the restrictive covenant no longer exist and furthermore the restrictions have been waived by the conduct of appellee.

The jurisdiction of equity to enforce covenants restricting the use of property is not absolute, and where such covenants were made with reference to the continuance of existing general conditions of the property and its surroundings and there was such a change in the character of the neighborhood as to defeat the purpose of the restrictions and to render their enforcement inequitable and burdensome, a court of equity will not enforce these restrictions, but will leave complainant to his remedy at law. Especially should an injunction be denied where this change is due to the acts of the grantor who imposed the restriction or those who derived title under him, or where it appears that complainant would be benefited rather than injured by the erection and violation complained of and where tim granting of any injunction would bear very heavily upon defendants since it would be unjust to enforce the covenant specifically under these circumstances.

32 C. J., page 212, sec. 328, page 204, sec. 316, page 216, sec. 334, and pages 77 and 207.

Nothing is better settled in this state, and nothing is or ought to be better understood, than the rule that a mandatory injunction should never issue unless the right to it is so clearly and certainly shown that there can be no reasonable doubt of its propriety, no probability that the defendant can make any valid objection to it, and no possibility that its justice can be controverted.

Thomas v. Miss. Power & Light Co., 152 So. 269, 170 Miss. 811; Miss. Power & Light Co. v. McCoglan Hotel, 152 So. 271.

The decree of the lower court is vague, indefinite and uncertain.

Griffith's Chancery Practice, sec. 625; Norris v. Norris, 128 So. 342, 157 Miss. 457.

H. C. Mounger, of Greenwood, for appellant.

The restrictive covenants in the deed are so vague, indefinite and uncertain as to be unenforceable.

26 American English Encyc. of Law (2 Ed.) 33; Welsh v. Williams, 37 So. 561, 85 Miss. 301.

The restrictive covenant in the deed has not been broken. The building is a two story building. It was put up by a contractor. He and the defendants considered it a two stow building. It has a second story with a floor and is above the lower story. The fact that the building was not as high as the complainants thought it ought to be means nothing.

Conditions giving rise to the restrictive covenant no longer exist; therefore, equity should not enforce the covenant.

Osius v. Barton, 109 Fla. 556, 147 So. 862, 54 A. L. R. 812; 95 A. L. R. 458.

Where the time during which a restrictive covenant is to endure has not been expressly limited, it should be implied that some reasonable limitation adapted to the nature of the case was intended.

Barton v. Moline Properties, 121 Fla. 683, 164 So. 551, 103 A. L. R. 725; Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604, 95 A. L. R. 452.

This case is barred by the statute of limitations.

Thornton v. City of Natchez, 41 So. 498.

Restrictions and prohibitions as to the use of real property by the grantee should generally be resolved in favor of the free use of the property; and it is obvious that the restriction of the right of a grantee to use his land as he will must be confined within reasonable bounds.

7 R. C. L. 1115, sec. 31.

Alfred Stoner, of Greenwood, for appellee.

Parties have a constitutional right to make contracts that are not against public policy, and it has never been held that such contracts violate it. Dodson solemnly covenanted that when a building was built it would be of a certain definite type. When that building was built, it was not of the type agreed upon, and this fact is conclusively shown inasmuch as there was no real contradiction of it by Mr. Kitchell, the only witness for the appellants. How is it that they have always insisted that Mrs. Hyman be bound, to her great prejudice, and deny that they themselves should be bound.

If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a court of equity has to do is to say by way of injunction that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction does nothing more than give the sanction of the process of the court to that which already is the contract between the parties. It is not, then, a question of convenience or inconvenience, or of the amount of damage or injury; it is the specific performance, by the court, of that negative bargain which the parties have made, with their eyes open, between themselves.

Spilling v. Hutchenson, 111 Va. 179, 68 S.E. 250; Maine v. Mulliken, 176 Mich. 443, 142 N.W. 782.

It will be observed that the appellee seeks merely for legal sanction of a contract that she has followed and obeyed, and she seeks only a writ to give effect to the very words of that solemn contract.

Osius v. Barton, 88 A. L. R. 394.

Equity will not decline to enforce a building restriction on the ground of its violation by some of the grantees affected thereby, where there has not been any such change in the character of the neighborhood as to defeat the original purpose and design of the covenants.

Hyman v. Tash, 71 A. 742; Bowen v. Smith, 74 A. 675; McGuire v. Caskey, 62 Ohio St. 419, 57 N.E. 53; 32 C. J., page 212, sec. 328.

We submit that even if the courts did consider the inconvenience, the proof shows in this case that it would not have been inconvenient nor injurious to the appellants if they had complied with the contract.

In substantial effect, the measure of damage in this case is really liquidated, although not so in legal effect, because a breach on the part of those holding under Miss Attlesey would really entitle the appellee to make of her building a second story building, and thus shut off the light and air in the Attlesey building on the north side, and thus deprive the Odd Fellows of the advantages mentioned by their committee at the time that they recommended the purchase of the lot. However, Mrs. Hyman has a right to rely on the contract, and she prefers to do so rather than breach it by considering the restrictions as abandoned.

Where the breach of a contract consists in the doing of acts that a court of equity can prevent by injunction, and when it further appears that damages at law are not an adequate remedy, because the damage cannot be computed or is otherwise irreparable, such acts will be enjoined.

32 C. J., page 1187, sec. 282, and page 189, sec. 284.

The general rule is that, on an application for an injunction to restrain the breach of a restrictive covenant as to the use of land, the court will not take into consideration the relative inconvenience and injury to the parties, and especially is this true where defendant had knowingly and deliberately violated the restrictive covenant.

32 C. J., page 211, sec. 327.

The right to relief by injunction is not lost by laches or estoppel where defendant is not injured by reason of the failure of complainant to take earlier proceedings for the enforcement of his rights.

32 C. J., page 211, sec. 326, and page 213, sec. 332.

It is proper to pray that injunction issue after the case is tried on its merits.

Archer v. Greenville Sand Co., 223 U.S. 60, 58 L.Ed. 850.

If this case is affirmed and remanded, it being in this respect an interlocutory decree, and the chancellor still having full jurisdiction over it, the appellants can apply for any instructions that may be necessary, and certainly the chancellor would have authority, even conceding the decree to be indefinite, for the...