Little v. Hunter

• Decision Date: 20 July 1972
• Docket Number: 1 Div. 686
• Parties: J. H. LITTLE v. Robert HUNTER et al.
• Court: Alabama Supreme Court

Page 441

265 So.2d 441

289 Ala. 6

J. H. LITTLE v. Robert HUNTER et al.

1 Div. 686.

Supreme Court of Alabama.

July 20, 1972.

Joe H. Little, Jr., Mobile, for appellant.

Sydney R. Prince, III, Mobile, for appellees.

PER CURIAM.

This is an appeal from a final decree of the Circuit Court of Mobile County, in Equity, which upheld the validity of restrictive covenants in a deed which appellees, Robert Hunter and wife, Gertrude, executed on September 12, 1957, purporting to convey to Dr. J. H. Little, the appellant, real property situated in Mobile County, described as follows:

'Lots 1 and 2 of the Second Unit of Sierra Bonita, according to a plat thereof recorded in Map Book 6, page 317 et seq., of the Probate Court Records of Mobile County, Alabama.'

The restrictive covenants of which the appellant, Dr. Little, the grantee in the deed, complains are in the habendum clause and read:

'3. The two lots herein conveyed shall be used together as one lot for one residence only and the grantee, his heirs and assigns, hereby covenant that they will not divide or subdivide said property or convey any part of said property separately and apart from the balance.'

At the time the aforementioned deed was executed, the lots described therein were subject to restrictive covenants contained in an instrument executed by a previous owner, Gulf Realty & Insurance Company, a corporation, dated June 18, 1954, which instrument was properly recorded in the Probate Court of Mobile County on June 22, 1954.

The opening paragraphs of the last-mentioned instrument read:

'WHEREAS, Gulf Realty & Insurance Company, a corporation, is the owner of all that certain real property known as the Second Unit of Sierra Bonita, a subdivision according to a plat thereof prepared by Norden Engineering Company, dated May 7, 1954, and recorded in the Probate Court Records of Mobile County, Alabama, and

'WHEREAS, it desires to place on the property in said subdivision certain protective and restrictive covenants regarding the use of said property:--

'NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that Gulf Realty & Insurance Company, a corporation, does hereby agree with all the purchasers and future owners of the lots located in said Second Unit of Sierra Bonita that the following protective and restrictive covenants regarding the use of said property shall apply in said subdivision, viz:--'

It is provided in Gulf's first restrictive covenant that all lots in the subdivision shall be known as residential lots on which there could be built only a detached single-family dwelling, not to exceed two stories in height, and a private garage for not more than two cars, servants quarters and appropriate outbuildings. In Gulf's second restrictive covenant it is provided, among other things, that: 'No main dwelling shall be located on any lot nearer than ten feet to any interior lot line, except as to the West line of Lots 2 and 5 of said subdivision and no building shall be located nearer than thirty (30) feet to the West lot line of said lots.'

Gulf's restrictive covenants 11 and 13 read:

'11. These covenants are to run with the land and shall be binding on all parties and all persons owning any lots or interest in said subdivision for a period of twenty-five years from date, at which time said covenant shall be automatically extended for successive periods of ten years unless by a vote of the record owners of two-thirds (2/3) or more of the land in said subdivision it is agreed to change or amend said covenants in whole or in part.

'13. Any or all of the restrictions herein may be annulled, amended or modified at any time by an instrument executed by the record owners of two-thirds (2/3) or more of the land in said subdivision, provided, however, that no amendment shall place an additional burden or restriction on lots in said subdivision which bind any lot, the owner of which does not join in said amendment.'

In Gulf's restrictive covenant 12 it is provided, Inter alia: '. . . any owners of any property in said subdivision shall have the right to enforce any of the foregoing restrictions against any person violating the same by appropriate proceedings in a court of competent jurisdiction.'

The subdivision in question is small, containing only five lots, numbered 1, 2, 3, 5 and 6. It adjoins Azalea Road on the west and the only street which can be used to reach all of the lots is a cul-de-sac called Byronell Court, which runs in a westerly direction from Azalea Road into but not through the subdivision. It ends in a 'turn-around' at the eastern boundary of Lot 3. Lots 1 and 2 are on the north side of Byronell Court and Lots 5 and 6 are on the south side. Lots 2 and 5 adjoin Lot 3 on the east. Lot 1 adjoins Lot 2 on the east and Lot 6 adjoins Lot 5 on the east.

In 1956 or prior thereto, Dr. William J. Atkinson, Jr., bought Lot 3, which is much the largest of the five lots. During that year he purchased Lots 1 and 2 from Bernard Adair and Lot 5 from C. A. Brown. Actually, the title to Lots 1 and 2 was taken in the name of Dr. Atkinson's brother-in-law and sister, Robert and Gertrude Atkinson Hunter, but at all times it was understood by the Hunters and Dr. Atkinson that the latter was the owner of those two lots, with the right to do with them as he pleased.

Sometime prior to July, 1957, after Dr. Atkinson had purchased Lots 1 and 2 through the Hunters, he and Dr. Little discussed the matter of Dr. Little purchasing those lots from Dr. Atkinson. As a result of that discussion, Dr. Atkinson's attorney prepared a written agreement or offer to purchase the two lots for Dr. Little to execute. Dr. Little executed said instrument in July, 1957. Dr. Atkinson affixed his signature to the instrument as seller. The 'offer' was accepted 'on the terms and conditions outlined therein,' which read, in part, as follows:

'It is particularly understood that:

'(a) Restrictive covenants contained in instrument executed by Gulf Realty & Insurance Company, dated June 18, 1954, and recorded in Deed Book 602, Page 322, in the Probate Court Records of Mobile County, Alabama.

'(b) Easement for installation and maintenance of electric power as reserved in said restrictive covenants.

'(c) These two lots are to be used together for one residence and cannot be sold or used separately as two separate lots.'

Thereafter on September 12, 1957, Robert Hunter and wife, acting on behalf of Dr. Atkinson, executed the deed involved in this litigation. That deed, omitting caption, description, acknowledgement and recording data, reads:

'KNOW ALL MEN BY THESE PRESENTS, that we Robert Hunter and Gertrude A. Hunter, husband and wife, for and in consideration of One Dollar and other valuable consideration in hand paid to us the receipt whereof is hereby acknowledged, we hereby grant, bargain, sell and convey unto J. H. Little, M.D., all that real property situated in the County of Mobile, State of Alabama, described as follows, viz:

'TOGETHER WITH ALL AND SINGULAR the rights, members, privileges and appurtenances thereunto belonging or in anywise appertaining:

'TO HAVE AND TO HOLD said property unto the said grantee, his heirs and assigns forever, subject however, to the following restrictions:

'1. Restrictive covenants contained in instrument executed by Gulf Realty & Insurance Company, dated June 18, 1954, and recorded in Deed Book 602, page 322, in the Probate Court Records of Mobile County, Alabama.

'2. Easement for installation and maintenance of electric power as reserved in said restrictive covenants.

'3. The two lots herein coveyed shall be used together as one lot for one residence only and the grantee, his heirs and assigns, hereby covenant that they will not divide or subdivide said property or convey any part of said property separately and apart from the balance.

'And, except as to the foregoing restrictions and all taxes hereafter falling due, the said Grantors for themselves, their heirs, executors and administrators hereby covenant with the Grantee, his heirs and assigns, that they are seized of an indefeasible estate in fee simple in said property, that said property is free and clear of all encumbrances, and that they do hereby warrant and will forever defend the title to said property unto the Grantee, his heirs and assigns, against the lawful claims of all persons.

'IN WITNESS WHEREOF, the Grantors have hereunto set their hands and seals this 12th day of September, 1957.'

Dr. Little made no effort to construct a dwelling on Lots 1 and 2 or on either of them. He gave some thought to selling the two lots, but the proposed sale was not consummated because of the provisions of restrictive covenant 3, which is sometimes referred to as the third paragraph in the habendum clause in the deed, when considered in connection with the Gulf Realty restrictions as to the proximity to the interior lot lines to which a dwelling might be constructed. Thereafter, Dr. Little sought to give Lot 1 to one of his children and Lot 2 to another, but was advised by Dr. Atkinson that such gifts would run counter to restrictive covenant 3 of the deed in question.

Dr. Little then filed his bill in this case, which we construe to be a bill for declaratory relief, wherein he sought to have the court declare restrictive covenant 3 in his deed to be invalid or in the alternative, declare that said restriction is 'personal as to the Respondents and your Complainant; that the restrictions do not run with the land; and that said restrictions would not be binding upon subsequent grantees of the property or any single lot thereof.'

Complainant based his right to the relief for which he prayed, in part, on the allegation or assertion that the restrictive covenants in paragraph 3 of the habendum clause in his deed are invalid and have no effect in that they are repugnant to and inconsistent with the granting clause of said deed, which purports to convey two separate and distinct subdivision lots in...