Keith v. Seymour
| Decision Date | 19 May 1960 |
| Docket Number | No. 13502,13502 |
| Citation | 335 S.W.2d 862 |
| Parties | Donald McDade KEITH et ux., Appellants, v. John D. SEYMOUR et al., Appellees. |
| Court | Texas Court of Appeals |
Hofheinz, Sears, James & Burns, Robert L. Burns, Houston, for appellant.
Sonfield & Sonfield, and Robert L. Sonfield, Houston, for appellees.
This suit was brought by appellees, John D. Seymour, and others, individually and as a class action for the use and benefit of property owners in Live Oaks Addition, against appellants, Donald McDade Keith and wife, to enjoin them from using or leasing property owned by them described as Lot 45 and a Part of Lot 44 in said Addition, for business, trade or professional purposes or for any purpose in violation of the restrictions allegedly applicable to lots in said Addition.
Appellants in defense of such action pleaded that such restrictions had not been imposed upon their property, that no general plan or scheme of restrictive covenants had been adopted or effectuated, that the alleged resolution setting out the restrictions was insufficient to give purchasers either actual or constructive notice, failed to satisfy the Statute of Frauds, Article 3995, Vernon's Ann. Texas Civ.St., as to the description of the land, and expressly reserved the right in the grantor to impose or fefrain from imposing the restrictions on any lot, thus manifesting a lack of intent to adopt a general plan or scheme of restrictions.
The case was tried without a jury. From the judgment of the court granting a permanent injunction and denying appellants' cross-action for a declaratory judgment declaring that appellants' property was not subject to the restrictions in question, appellants have perfected their appeal.
The parties have stipulated at length as to conveyances of lots in the Addition with respect to whether they were conveyed with or without reference to restrictions. Among other things, it is stipulated that on April 1, 1929, the president and secretary of Live Oaks, Inc., the owner of Lot 10 of Large Lot 48 of the Obedience Smith Survey in Harris County, Texas, with the exception of two 1-acre tracts, specifically described, filed a plat of 'Liveoaks' in the map records of Harris County, Texas, and on May 17, 1929 filed an Amended Plat in such map records, Vol. 10, p. 8, and that the Subdivision known as 'Liveoaks' comprises a part of the land above described. On December 17, 1929, by reference to said plat in Vol. 10, p. 8, Live Oaks, Inc. conveyed Lot 17 in said Addition, imposing restrictive covenants applicable to such lot.
Thereafter, on December 30, 1929, and prior to conveying any other lot in Liveoaks, a resolution of Live Oaks, Inc., owner of such property, was filed in the deed records of Harris County (Vol. 823, p. 584), setting out the restrictions involved herein. On January 1, 1930, Live Oaks, Inc. conveyed Lot 5 of the Subdivision by deed subject to the restrictions 'set out in the instrument [resolution] recorded in Vol. 823, p. 584, Harris County Deed Records'. Lot 25 is the only other lot in the Subdivision which Live Oaks, Inc. conveyed by deed making specific reference to the restrictions recorded in Vol. 823, p. 584 of the deed records. On January 29, 1930, after conveyance of Lot 5 and after the resolution containing the restrictions had been filed, a plat referred to as Second Amended Map of Liveoaks was filed in the map records of Harris County, Texas (Vol. 10, p. 48), containing Lots 1 through 45 and Lots A through F.
Live Oaks, Inc. conveyed a total of 16 parcels of land before it was placed in receivership. In the deeds subsequent to the conveyance of Lot 5, with the exception of Lot 25, it conveyed the property by deeds containing a provision reading substantially, 'subject to those building restrictions which are of record', without specific reference to the volume or page of the records or county where recorded. On January 16, 1934, Otto W. Reichert, as receiver of Live Oaks, Inc., conveyed to I. G. Strauss said Lot 10 of Large Lot No. 48 in Obedience Smith Survey in Harris County, Texas, except two specifically described 1-acre tracts and two tracts 50 by 100 feet in size, without mention of 'Liveoaks'. The deed does not convey any land or lots by reference to the plat of Liveoaks, does not except lots previously sold, and does not convey the land subject to any restrictions.
The following map, based on defendants' Exhibit 2, though not precisely to scale, shows the general location and size of the lots in the addition and certain data with respect to restrictions:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Excluding the lots previously conveyed by Live Oaks, Inc., the deed to Strauss conveyed 29 lots and fractional parts of 5 other lots, constituting more than one-half of all the lots in the Addition, without mention of building restrictions, such lots being; 1, 2, 3, 6, 19, 20, 21, 22, 23, 24, 27, 28, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45 and C, D, E, and F. The fractional parts of lots conveyed without restrictions are: The West 17 1/2 feet of Lot 7 the East 15 feet of Lot 9, the West 40 feet of Lot 10, the West 20 feet of Lot 29, and the South part of Lot 42. Strauss conveyed all of the above mentioned enumerated lots without any reference to building restrictions, with the exception of (1) in East 37 1/2 feet of Lot 6, the West 17 1/2 feet of Lot 7, (2) Lots 32 and C, (3) the East 38 feet of Lot 28 and the West 22 feet of Lot 29, and (4) Lot 38 and the adjoining West 10 feet of Lot 37.
Strauss conveyed Lots 19 through 24 to the City of Houston for a public park, which is located, as shown on the map, and which is not used for residences. It will be noted that the interior lots in the Addition front on the park or 'island', as it is also called, and that 16 lots, including the property owned by appellants, front on Shepherd Drive, a much traveled thoroughfare.
On May 6, 1936, Strauss conveyed the property in question, Lot 45 and a part of 44, to one Parker S. Presley. The deed did not adopt any restrictions but the general warranty clause concluded as follows:
'* * * except as against the reservations, restrictions, covenants and conditions, of record applicable to this property as a part of Live Oaks Addition.'
Presley conveyed the property to Joe Glenney, Jr., by deed which makes no mention or reference to any restrictions whatever. Glenney conveyed the tract to appellants by deed containing the following provision:
'This conveyance is made and accepted subject to any and all restrictions and easements affecting the use of the premises conveyed herein, now of record in the County Clerk's Office in said County, but only to the extent they are still in effect.'
Appellants assert by their two Points, briefed together, that the court erred in holding that the restrictions and covenants contained in the resolution of Live Oaks, Inc., were imposed upon their property and are applicable thereto, and also erred in holding that a general plan or scheme of restrictions was ever adopted or enforced in the Subdivision 'Liveoaks'.
The ex parte resolution containing the restrictions was passed at a meeting of the board of directors of Live Oaks, Inc., December 26, 1929. It purports to set out various provisions restricting the use to be made of lots in Live Oaks [2 words], but it describes no property whatever. Among other things, it provides that the owners of lots in Live Oaks, it, any or all of them shall have the right to demand and require observance of and compliance with each and all of the provisions, or any of them contained in such resolution; 'and provided further that the company may at any time before it sells a lot, or lots, relieve said lot, or lots, from any and all of the provisions, but not thereafter, said provisions being as follows: * * *' Here follow provisions prohibiting the use of the property for business purposes and providing that the property shall be used for residence purposes only, except as described in Paragraph 'L'. Paragraph 'L' provides that none of the above and foregoing restrictions shall apply to Lots Nos. 33, 34, 35, D and E, inclusive. The resolution then provides in substance that the grantee to any of the above described property in Live Oaks, shall accept the conveyance out of the company subject to all the restrictions, covenants and conditions set forth, which shall be deemed covenants running with the land, and for themselves, their heirs and assigns, shall forever faithfully observe and perform said restrictions and conditions, and further provides that if any grantee or any person claiming under him shall violate the same it shall be lawful for any person owning land 'which is subject to the same restrictions and conditions in respect to which default is made, or for the company, to institute and prosecute proceedings at law or in equity, for the wrong done or attempted.'
We are of the opinion that the proviso, 'and provided further that the company may at any time before it sells a lot, or lots, relieve said lot, or lots, from any and all of the provisions, but not thereafter,' means exactly what it says. It is appellees' contention that such provision gives the company the right, before it sells the first lot or lots in said Addition, to relieve such first lot or lots from the restrictions, but that such right does not extend beyond the sale of the first lot or lots in such Addition. If that had been the intention of the directors of the company, they could very easily have expressed such intention in a manner that would not give rise to any doubt with respect thereto. Moreover, if we accept appellees' construction, such provision would be meaningless, since without such provision the company under the law had the right, before selling the first lot or lots, to change the restrictions or relieve any lot, or lots, or all of the lots...
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