Interstate Circuit, Inc. v. Pine Forest Country Club

• Decision Date: 15 December 1966
• Docket Number: No. 14910,14910
• Citation: 409 S.W.2d 922
• Parties: INTERSTATE CIRCUIT, INC., et al., Appellants, v. PINE FOREST COUNTRY CLUB, Appellee. . Houston
• Court: Texas Court of Appeals

Page 922

409 S.W.2d 922

INTERSTATE CIRCUIT, INC., et al., Appellants, v. PINE FOREST COUNTRY CLUB, Appellee.

No. 14910.

Court of Civil Appeals of Texas Houston.

Dec. 15, 1966.

Rehearing Denied Jan. 5, 1967.

Johnson, Bromberg, Leeds & Riggs, Dallas, and Presley E. Werlein, Jr., Houston, for appellants.

Fulbright, Crooker, Freeman, Bates & Jaworski, Wm. R. Hoge, Jr., and Dan Matthews Houston, and L. Keith Simmer, Houston, of counsel, for appellee.

COLEMAN, Justice.

This is a class suit against numerous defendants, including appellants, to remove the cloud on appellee's title to certain real estate created by recitations in its deed restricting the use of said tract to country club or residential use only. Appellee contended that the covenants were not part of a general plan or scheme involving the lands of appellants, but were personal to the grantor in the deed, who had conveyed the right to enforce the covenants to appellee. The trial court set aside the verdict of a jury and rendered a judgment for appellee sustaining this contention .

The Garden Oaks Company purchased 747.229 acres out of the S. W. Allen Survey in Harris County, Texas, and received a deed dated March 3, 1937. Subsequent to said date the Garden Oaks Company platted residential subdivisions designated as Garden Oaks, Sections 1 through 5. Each subdivision was separately platted and the land area included in each plat, described by metes and bounds, was subjected to certain restrictive covenants. Each instrument of dedication and restriction included the following language: 'This instrument of dedication relates to and affects the above described property and shall not affect other property not herein described.' No over-all plat of the entire tract was prepared or filed for record. The plats adopted by the Company for the individual residential subdivisions showed adjacent land, not then platted, as 'acreage' or 'unrestricted'.

Thereafter portions of the original 747.229 acre tract, including a 24 acre tract, were conveyed witihout restrictions as to use, leaving the Garden Oaks Company a tract of approximately 165 acres and a few scattered lots in the residential subdivisions. By deed dated December 7, 1945, the Company conveyed to appellee 140.023 acres out of the 165 acre tract. The deed of conveyance contained the following provisions:

'This deed is executed and accepted with the understanding that the property above described is hereby and shall remain restricted for the time hereinafter provided so that same may only be used for pruposes as follows:

(a) As a country club and golf course on which may be constructed club houses, a golf course, Swimming pool, tennis courts, play grounds and other improvements suitable for and designed for use of said property as a country club; (b) Said property may also be subdivided and platted as a residential subdivision similar to the platting of Garden Oaks Sec. 2 out of the S. W. Allen survey in which event streets shall be dedicated and the property shall thereafter be used in accordance with and conveyed subject to residential restrictions which shall conform with restrictions then in force against Garden Oaks sec. 2 and with similar easements. (c) The foregoing restrictions shall be deemed covenants running with the land and shall continue in force for the duration of the restrictions applicable to Garden Oaks Sec. 2 as originally restricted and as same may from time to time hereafter be extended. Provided nevertheless grantee shall have the right to exchange any portion of said property fronting on Yale Street and extending back from said street not to exceed five hundred (500) feet free from the above restrictions, for other property adjacent to the property hereby conveyed.

Provided such other property is subject to and charged with the foregoing restrictions, and provided grantor shall not be required to release said property until grantee has acquired good title to property taken in exchange and has executed a deed of trust thereon to further secure the above mentioned note. To have and to hold the above described property and premises together with all rights and appurtenances thereto in anywise belonging subject to the restrictions aforesaid unto the said Pine Forest Country Club its successors and assigns forever. And Garden Oaks Co . hereby binds itself, its successors and assigns to warrant and forever defend all and singular the said property and premises subject to restrictions, easements, and covenants hereinabove set out, unto the said Pine Forest Country Club, its successors and assigns against the lawful claims and demands of any and all persons whomsoever lawfully claiming or to claim the same or any part thereof.'

After such conveyance Garden Oaks Company retained approximately 25 acres lying immediately to the west of said property and running the full length of the property, the east line of said tract being described in appellee's deed as its west line.

Subsequent to the conveyance to Pine Forest Country Club, Garden Oaks Company, or its successors, conveyed portions of the 25 acre tract to St. Matthews Methodist Church, Corrigan-Houston, Inc., Interstate Circuit, Inc., and made a longterm lease of the remaining 13 acres to Sears, Roebuck and Company.

The residential restrictions placed on Garden Oaks, Section 2, are still in full force and effect. This Section lies across North Shepherd Drive from the 25 acre tract, and is near, but not contiguous with, the Pine Forest Country Club tract. The Garden Oaks Company had sold most, but not all, of the lots in Section 2 at the time of the sale to the Pine Forest Country Club.

In answer to the issues submitted, the jury (1) failed to find changed conditions in the area of the country club, but (2) found that there was a general plan or scheme for the development of the country club property and the adjacent property to the west along North Shepherd Drive, and (3) that Garden Oaks Company placed restrictions on the use of the Pine Forest Country Club property for the purpose of increasing the value of the commercial property owned by it to the west of the country club tract along North Shepherd Drive and that Corrigan-Houston and Interstate Circuit, Inc. purchased their property from the successors of Garden Oaks Company relying on the restricted use of the Pine Forest Country Club property.

The problem in this case is that of determining whether anyone other than Garden Oaks Company and its successors has a right to enforce the restrictions on use contained in the deed from the Garden Oaks Company to the Pine Forest Country Club. If the Garden Oaks Company established a general plan for the development of the 165 acres which had not been platted at the time of the sale to the Pine Forest Country Club, and the sale to the club was made with reference to the plan, or if the club had knowledge or notice of the general plan at the time of its purchase, the restrictions as to use can be enforced by subsequent purchasers of other tracts of land included within the general plan. Curlee v. Walker, 112 Tex. 40, 244 S.W. 497 (1922).

The jury found that there was a general plan for the development of this tract of land. There is no finding that the Pine Forest Country Club knew of the plan or were charged with notice of such a plan. No plat of the area was ever prepared. The property conveyed to the club was described by metes and bounds. The deed made no mention of the 25 acres adjacent to the land conveyed, the ownership of which remained in grantor. The fact that restrictions as to use were imposed on the land conveyed, in the absence of similar restrictions on the land retained, would not be evidence of a general plan. There is no mutual benefit between the vendor and the vendee. Hooper v. Lottman, 171 S.W. 270 (Tex.Civ.App.--El Paso 1914); Green v. Gerner, 289 S.W. 999 (Tex.Com.App.1927); Pierson v. Canfield, 272 S.W. 231 (Tex.Civ.App.--Dallas 1925).

Had there been any evidence to warrant the submission of the issue on general plan to the jury, the trial court could not have disregarded the answer made by the jury merely because there was not sufficient evidence to support it. Wilderspin v. Bewley Mills, Inc., 298 S.W.2d 636 (Tex.Civ.App.--Ft. Worth 1957, writ ref., n.r.e.).

We find no evidence to support the finding of the jury on this issue. The trial court did not err in disregarding the finding that there was a general plan for the development of the area included in the Pine Forest Country Club tract and the 25 acre tract retained by the Garden Oaks Company.

Appellant contends that Garden Oaks placed the restrictions on the country club property for the benefit of the adjacent property owned by it, and that as subsequent grantees of portions of this property they are entitled to enforce such restrictions.

The pertinent general rule is stated in McNichol v. Townsend, 73 N .J.Eq. 276, 67 A. 938 (1907), as follows:

'One owning a tract of land may convey a portion of it, and by appropriate covenant or agreement may lawfully restrict the use of the part conveyed for the benefit of the unsold portion, providing that the nature of the restricted use is not contrary to principles of public policy. In such case, a subsequent purchaser of all or a part of the remaining land for the benefit of which the stipulation was made may in equity enforce the observance of the stipulation against the prior grantee upon the principle that the rights created by such a stipulation are transferable as part of the land to which they are attached (Coudert v. Sayre, 46 N.J.Eq. 386, 393, 19 Atl. 190), and such subsequent purchaser may in equity enforce the stipulation against a person who holds title under the prior purchaser, who has acquired title with notice of the restriction, upon the principle which prevents a party having knowledge of the just rights of another from defeating such rights (Brewer v. Marshall, 19 N.J.Eq. 537,...