Hegna v. Peters
| Decision Date | 20 January 1925 |
| Docket Number | 36243 |
| Citation | 201 N.W. 803,199 Iowa 259 |
| Parties | K. E. HEGNA et al., Appellees, v. MARY H. PETERS et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--O. S. FRANKLIN, Judge.
AN action to enjoin the defendants from violating certain alleged building restrictions. The court granted the relief prayed for. Defendants appeal.--Affirmed.
Modified and affirmed.
Parrish Cohen, Guthrie & Watters, for appellants.
Jordan & Jordan, for appellees.
Mary H. Peters was the owner of a tract of land lying between Forty-first and Forty-second Streets and Forest Avenue and University Avenue in the city of Des Moines. In 1912, she platted this tract of land into 48 lots. In the same year, or shortly thereafter, she made a contract with the plaintiffs herein to sell to them Lot 2 in said plat, and later said lot was deeded to the plaintiffs. This contract and deed had identical provisions as to certain building restrictions, to which reference will hereafter be made. Later, and shortly before the commencement of this action, Mary H. Peters deeded to defendant J. Paul Neal, two or three lots in said addition. While the deed to Neal is not set out, it seems to be conceded by all parties concerned that the building restrictions referred to were not contained in this deed. The evidence satisfactorily shows that Neal is about to construct a store building or flat on the property so purchased by him. It is to be noted, in passing, that neither of the defendants introduced any testimony in this case.
The building restrictions in the aforesaid deed of plaintiffs and the contract with Mary H. Peters are quite extensive; but, so far as we are concerned with them, summarized, they provide that the grantee is bound to use the property conveyed for residence purposes exclusively until the first day of January, 1932, and for no other purpose whatsoever. It marks out the distance from streets within which building of all kinds is prohibited, and the minimum cost for the residences to be built, and states that no store, apartment house, or flat is to be erected, and gives to the vendor and to every purchaser of any other lot or portion of a lot of said plat the right to enforce these restrictions against the vendee in the deed, but does not, in terms, give the vendee the right to enforce these same restrictions against the purchaser of other lots in the plat, or against the vendor Mary H. Peters.
Of these 48 lots in this plat, 36 had been sold by Mary H. Peters prior to the time of conveyance to Neal. These 36 deeds were introduced in evidence, and, so far as material to this case, are identical, as far as the building restrictions are concerned.
While Neal, in substance, files a general denial herein, the evidence satisfactorily shows that he knew of and was advised that building restrictions existed on all this property before he bought it. This being so, whatever restrictions there were, will be binding on him, although omitted from his deed. (See authorities hereinafter cited.)
The evidence in the case shows that Mary H. Peters had stated and represented to the various witnesses that all lots in this plat were under building restrictions. A large number of advertisements in the newspapers of the city of Des Moines were offered in evidence, and objection was made thereto on the ground that there was no showing that Mary H. Peters inserted or authorized the insertion of said advertisements in the newspapers.
Several of the purchasers of lots in this plat testified that Mrs. Peters represented to them, before they bought their property, that the whole territory was to be restricted; and some of them testified to assertions made by her after they purchased their lots.
The questions here to be considered are narrowed down to three.
First, the objection to the testimony of the witnesses other than the plaintiffs herein, as to representations made by Mrs. Peters to them before they bought their lots, on the ground that, they having bought by written contract, parol evidence was not admissible to change or vary the terms of the writing.
It is to be remembered that none of these witnesses are parties to the contract and deed made by Mrs. Peters and the plaintiffs, and are strangers thereto. These witnesses are not in this court seeking to enforce their written contracts, whatever they were, with Mrs. Peters, and the parol-evidence rule does not apply to them. Their testimony was not introduced for the purpose of changing or varying their contracts, but to show that at all times Mrs. Peters represented and stated that each and all of these lots were under building restrictions. For this purpose it is admissible, if for no other.
As to the objection to the plaintiffs' testifying to the representations made by Mrs. Peters at and before the time they purchased said property, and not incorporated into their contract and deed, the statements that she made being, in substance, that all of the said lots in the said territory were to be restricted, or a restricted district. This testimony was at least admissible to show the surrounding conditions and circumstances attending the making of the contract.
A purchaser of real property subject to building restrictions of which he had knowledge when he obtained title, is bound by such restrictions, even though they be not recited in his deed. Duester v. Alvin, 74 Ore. 544 (145 P. 660).
The general appearance and character of the tract and the nature of the improvements thereon, ought to indicate to one interested, the presence of some character of building restrictions. Miles v. Clark, 44 Cal.App. 539 (187 P. 167); Tallmadge v. East River Bank, 26 N.Y. 105, 111.
Uniformity in the restrictions imposed upon the several lots in a residential district is one of the strongest proofs of the existence of a building scheme. Hooper v. Lottman (Texas Civ. App.), 171 S.W. 270.
Second, it is further urged that the advertisements in the newspapers were not admissible because there is no showing that Mrs. Peters inserted the same, or that they were inserted in the newspapers with her knowledge, consent, and authority.
We are of the notion that these newspaper advertisements were not binding on Mrs. Peters, but feel that they were admissible for what they may be worth, in showing that it was publicly known and understood that this plat was a restricted district.
The third proposition is that, by reason of the statute of frauds of this state, and the failure of the plaintiffs' contract and deed to confer upon them their right to enforce the building restrictions against any other lot owner in this platted territory, parol testimony is not admissible to show...
To continue reading
Request your trial