Hyder v. Brenton

• Decision Date: 14 June 1979
• Docket Number: No. 3405,3405
• Citation: 1979 NMCA 76,93 N.M. 378,600 P.2d 830
• Parties: Richard E. HYDER and Pauline Hyder, his wife, Plaintiffs-Appellees, v. June Grimm BRENTON, David M. Meadmore and Manuel Medina Martin, Defendants- Appellants.
• Court: Court of Appeals of New Mexico

Page 830

600 P.2d 830

93 N.M. 378

Richard E. HYDER and Pauline Hyder, his wife, Plaintiffs-Appellees, v. June Grimm BRENTON, David M. Meadmore and Manuel Medina Martin, Defendants- Appellants.

No. 3405.

Court of Appeals of New Mexico.

June 14, 1979.

Rehearing Denied June 28, 1979.

Keleher & McLeod, P.A., Michael L. Keleher, Robert H. Clark, Albuquerque, for plaintiffs-appellees

Rodey, Dickason, Sloan, Akin & Robb, P.A., Bruce Hall, Edward T. Curran, Albuquerque, for defendants-appellants.

OPINION

ANDREWS, Judge.

This suit in Bernalillo County District Court results from a dispute between neighbors, Mr. and Mrs. Hyder and the Brentons (Mrs. Brenton, her son, Manuel Medina Martin and his cousin, David Meadmore). The Hyders sought an injunction against further improvements on land they had sold to Mrs. Brenton, along with damages, and rescission of the sale. The district court issued the injunction pending trial. After the non-jury trial the court found for the Hyders and granted rescission of the sale and injunctive relief. Defendants appeal, specifically objecting to conditions of the judgment which would permit them to retain the property if the property is replatted and if all permanent structures and improvements are removed. The question is whether erection of a wall and use of the property for gardens rather than a single family dwelling violates a restriction in the deed by which the Hyders conveyed the property to Mrs. Brenton. The restriction reads: "One family dwelling 2500 square feet exclusive of open porches and garage." We do not find this provision so limiting and therefore reverse.

The Hyders live on Hyder Avenue, S.E., on Lots 5 and 6 in Block 18 of the Monterey Hills Addition in Albuquerque, New Mexico. They also, along with Mr. Hyder's father, Latif Hyder, owned the adjacent Lots 3 and 4 to the east along Hyder Avenue. Martin and Meadmore owned Lots 10 and 11 and the eastern thirty-seven feet of Lot 9, which are located to the south of Lots 3 and 4, along San Rafael Avenue, S.E. Thus, the parties had common back property lines.

In April, 1975, while Mr. Meadmore and Mr. Martin were in the process of designing and building their home and gardens on Lots 9, 10 and 11, they spoke to Mr. Hyder about the possible purchase of Lots 3 and 4. Their intention was to acquire the adjacent lots for Mrs. Brenton so that she could build a house for herself facing Hyder Street, with gardens in between and joining the two homes. Mr. Hyder accepted $1,000 from Mr. Meadmore and entered into an option agreement dated April 2, 1975, whereby Mr. Meadmore could purchase Lots 3 and 4 for a total price of $16,000 before August 3, 1975. The option mentioned no restrictions on the property. During the same month, Mr. Meadmore and Mr. Martin conveyed Lots 9, 10 and 11 to Mrs. Brenton.

Nothing transpired between the parties in regard to the property until August 1, when Mrs. Brenton met with Mr. Hyder and his father to close the transaction. The three talked for about one-half hour and Mrs. Brenton described the house she intended to build on Lots 3 and 4, indicating that she planned to begin building the next spring. Mr. Hyder drew up a standard printed short form warranty deed. The restriction at issue was discussed at the meeting and added to the deed after the meeting.

After purchasing Lots 3 and 4, Mrs. Brenton continued to plan her house and formal gardens, and in November, 1975, began the process of replatting her land into a single tract by vacating interior lot lines so that improvements could be placed across them. She had an architect draw preliminary plans for her house and broke ground in January, 1976. However, a short time later, she decided not to build the separate residence, but instead to remain in the original house with her son and Meadmore.

In February, 1976, the defendants obtained a building permit from the city and proceeded, in accordance with applicable zoning regulations, to build a seven foot high wall near the Hyder Street property line of Lots 3 and 4, with permanent formal gardens within.

The Hyders brought this action alleging violations of the zoning code, subdivision building restrictions, and restrictions in the deed. The district court, basing its decision on the August 1, 1975 meeting, found the existence of an oral agreement that Lots 3 and 4 would be used only for construction of a single family residence and entered judgment with the following provisions:

2. Defendants are directed to replat that parcel of land designated as Tract A on the replat of Lots 3, 4, Block 18, MONTEREY HILLS ADDITION, and Lots 10, 11 and East 37 feet of Lot 9, in Block 18, MONTEREY HILLS ADDITION No. 2, into two parcels, one parcel to be identical to that parcel of land known as Lots 3 and 4, MONTEREY HILLS ADDITION, Plat date November 9, 1939, which parcel for purposes of identification in this Judgment is designated as the north one-half of Tract A.

4. The cinderblock wall situate on the north one-half of Tract A and located within 20 feet of the lot line fronting Hyder Street SE, including all side walls within said 20 feet shall be removed, and all above ground improvements of whatever nature, exclusive, however of lawns, trees and shrubbery, there may be on the north one-half of Tract A, shall forthwith be removed by Defendants and at their expense.

5. The north one-half of Tract A shall henceforth be kept and maintained in such condition that the property is at all times compatible for construction of a single family dwelling and shall not be used as a back yard for any other residence.

6. The north one-half of Tract A shall have and contain a restriction or covenant running with the land consistent with this Judgment and is henceforth dedicated to use for a one family dwelling with a minimum size of 2,500 square feet exclusive of open porches and garage.

7. Plaintiffs are entitled to rescission and retransfer of the north one-half of Tract A and the Court therefore orders a rescission and directs the Defendants to reconvey good and merchantable title to Plaintiffs within thirty (30) days of date of this Judgment. Plaintiffs shall refund to Defendants the monetary purchase price paid, $16,000.00 cash, without interest, at the time of Defendants' delivery of Warranty Deed. However, rescission is conditioned as stated in paragraph 8 hereof.

8. It is further ORDERED, ADJUDGED AND DECREED that the rescission herein granted by this Judgment and Order of the Court shall be delayed for a period of thirty (30) days from date of this Judgment and Defendants are hereby granted the option to retain title to the north one-half of Tract A, subject to replatting, removal of all permanent structures and improvements as herein noted, and subject to the covenants to run with the land heretofore imposed. The option to retain title shall be exercised by notice in writing filed with the Clerk within said thirty (30) day period. The Defendants however may retain a 3 foot high wall within the 20 foot setback area measuring from the lot line adjacent to Hyder Drive SE, but such 20 foot setback area shall be maintained as a front yard area, and shall not be used as the back yard of the residence situate on the south one-half of Tract A.

While this appeal raises a number of points stemming from the variety of legal theories adopted to support the judgment, including breach of contract, failure of consideration, scheme or pattern of development, dedication and zoning, we believe the decision should be made by considering the language of the deed. We therefore concentrate this discussion on the trial court's construction of the deed restriction.

The general rule for construction of deeds is that the intention of the parties is to be ascertained from the language employed, viewed in the light of the surrounding circumstances. Garry v. Atchison, Topeka and Santa Fe Railway Co., 71 N.M. 370, 378 P.2d 609 (1963). Provisions in a deed are to be construed against the grantor and in favor of the grantee, Harris v. Four Hills Development Corporation, 79 N.M. 370, 443 P.2d 863 (1968); Price v. Johnson, 78 N.M. 123, 428 P.2d 978 (1967). This is particularly true where the construction given the provision works a forfeiture. Garry v. Atchison, Topeka and Santa Fe Railway Co., Supra.

In our opinion, the restriction in question here merely sets a minimum size for any home to be built on the property, whenever a house is built. As construed by the trial court, the restriction requires Mrs. Brenton either to build a large home on the property or leave it completely unimproved. According to the trial court's literal interpretation of the deed restriction, each lot must be used Only for a 2500 square foot home. Such an interpretation is too narrow. Restrictive covenants must be considered reasonably, though strictly, and an illogical, unnatural or strained construction must be avoided. Montoya v. Barreras, 81 N.M. 749, 473 P.2d 363 (1970).

As demonstrated by the following findings, the trial court based its construction of the deed restrictions on prior discussions between the parties:

7. Prior to the conveyance of August 1, 1975, Defendant June Grimm Brenton assured Plaintiffs that Defendant Brenton intended to build a one-family dwelling on Lots 3 and 4 compatible with other houses in the immediate neighborhood, with a minimum size of 2,500 square feet exclusive of open porches and garage.

8. By the negotiations and express intentions of the parties Defendants and June Grimm Brenton, in particular, agreed to dedicate Lots 3 and 4 to use only for construction of a single family residence and such expressed intention and agreement is a material part of the consideration for the conveyance of said lots.

While Mrs. Brenton did tell Mr. Hyder and his father about the intentions she had to build a house on Lots 3 and 4, these expressions of intent did not constitute an oral contract between the parties. There is...