MacDonald v. Painter

• Decision Date: 07 May 1969
• Docket Number: No. B--944,B--944
• Citation: 441 S.W.2d 179
• Parties: George G. MacDONALD et al., Petitioners, v. Theo S. PAINTER, Jr., et al., Respondents.
• Court: Texas Supreme Court

Page 179

441 S.W.2d 179

George G. MacDONALD et al., Petitioners, v. Theo S. PAINTER, Jr., et al., Respondents.

No. B--944.

Supreme Court of Texas.

May 7, 1969.

Clark, Thomas, Harris, Denius & Winters, J. Sam Winters and Mary Joe Carroll, McGinnis, Lochridge, Kilgore, Byfield, Hunter & Wilson, Robert C. McGinnis and John W. Stayton, Jr., Austin, for petitioners.

Harry M. Whittington, Charles M. Babb, Austin, for respondents.

POPE, Justice.

Petitioners, George G. MacDonald and Kerry G. Merritt, as owners of three lots in the Mira Loma Subdivision to the City of Austin, instituted this suit for declaratory judgment against the owners of the twenty-seven other lots in the subdivision. They asked for a declaration that their three lots are not burdened with restrictions which prohibit their resubdividing the lots into six lots and thereafter constructing a duplex on each lot. The trial court sustained petitioners' motion for summary judgment and rendered judgment that the resubdivision and the erection of the duplexes did not violate the restrictions on the subdivision. The court of civil appeals reversed the judgment and remanded the cause for the determination of certain fact issues. 427 S.W.2d 127. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

On June 15, 1925 Enfield Realty conveyed to Hallie Bremond Houston the property in Austin, Texas, known as Mira Loma Addition. The deed contained these restrictions which were applicable to the properties owned by respondents as well as the property owned by MacDonald and Merritt:

'1. No mercantile business of any kind shall ever be carried on, on the premises hereby conveyed; * * * it being understood that all improvements to be erected on said premises shall be built and used for residence purposes only, excepting such improvements as may be proper for use in connection with a residence.

'2 * * *

'3 * * *

'4. The premises hereby conveyed shall not be subdivided into tracts of less than one acre before January 1st. , 1930, it being the intention of this paragraph and the agreement between the parties hereto that the premises hereby conveyed may be divided into tracts of one acre or more before such date and sold separately if desired by the grantee, but that smaller tracts than one acre may not be sold before such date; provided however, that this agreement may be modified by further agreement in writing between the Grantors and the Grantee, if they both so desire.

'The grantee in this conveyance accepts same subject to all the foregoing restrictions and conditions, which it is agreed shall be deemed to be covenants running with the land; and the grantee, for herself, her heirs, legal representatives and assigns, covenants to and with the grantor, their heirs and legal representatives, that she will, and that her heirs, legal representatives and assigns will forever faithfully observe all and each of the foregoing restrictions and conditions, whether or not they are repeated in subsequent conveyances of the above described property.'

Hallie Bremond Houston proceeded to plat and subdivide the tract into thirty numbered lots to be known as Mira Loma Subdivision. She caused the plat to be recorded in March of 1938. It contained no restrictions and referred to none. Mrs. Houston thereafter conveyed lots in the subdivision, and the deeds to the twenty-seven lots owned by respondents contained restrictions which were additional to those contained in the original Enfield deed to Mrs. Houston. The problem in this case arises because Mrs. Houston conveyed lots 20, 21, and 22 to her children by a deed which contained no restrictions. Mrs. Houston's children later conveyed a part of the three lots to MacDonald and Merritt by a deed which also contained no restrictions. The lots are located on the southern edge of Mira Loma Subdivision. The restrictions in the several deeds, which burden the twenty-seven lots owned by respondents, but which are not contained in the chain of title to lots 20, 21, and 22, with minor variations as to frontage requirements, are:

'3. All improvements to be erected on said premises shall be built for residence purposes, or for use in connection with residences; and the main residence so erected thereon shall front on John D. McCall Road; the front building line of the land hereby conveyed shall be not less than 30 feet from the property line of said premises, fronting on John D. McCall Road; and no residence, or any part thereof, and no outbuildings of any kind, shall ever be erected or placed upon the space between said building line and said property line.

'4. Any residence to be built on the premises hereby conveyed shall be of original cost not less than $4000 if a one story, or $6000 if a two-story residence.

'5. The grantee in this conveyance accepts the same subject to all of the foregoing restrictions and conditions which it is agreed shall be deemed to be covenants running with the land; and the grantee, for himself, his heirs, legal representatives and assigns, agrees that he and his heirs, legal representatives and assigns shall forever faithfully observe all of the foregoing restrictions and conditions, whether or not they are repeated in subsequent conveyances of the above property. * * *.'

MacDonald and Merritt, after acquiring their lots in 1965, resubdivided the lots into six lots and were preparing to erect duplexes on each lot when the attorney for Theo S. Painter, Jr., the adjoining lot owner to the north, advised them by a letter that such use of the property would violate the restrictions of Mira Loma. Painter acquired his property in 1961. The deed to him conveyed all of lot 23 to the north of lots 21 and 22 which are now owned by MacDonald and Merritt. The deed conveyed to Painter the south thirty-three and one-half feet of lot 24 which adjoined lot 23 on the north and also conveyed the north twenty feet of lots 21 and 22 which were south of lot 23. An earlier deed had also conveyed the west ten feet of lot 20. MacDonald and Merritt, by reason of these earlier conveyances, acquired by their 1965 deed less than the full lots as depicted for lots 20, 21, and 22 on the 1938 map.

The respondents say that a general plan or scheme was established for all the lots in Mira Loma even though the deed to MacDonald and Merritt and their chain of title did not contain the restrictions. The trial court treated the general plan or scheme, evidenced by the restrictions in the deeds, as applicable to the three lots owned by MacDonald and Merritt. It construed the restrictions as though they were actually written into the deed to lots 20, 21, and 22. The court concluded, however, that the restrictions prohibited neither the construction of duplexes nor the resubdivision of the three lots into six lots.

The court of civil appeals reversed the summary judgment, since it held there were several fact issues such as (1) whether a general plan or scheme was established for all of the lots in Mira Loma Subdivision, (2) whether the property owners had abandoned the plan or scheme, (3) whether the property owners had waived their right to enforce such plan, and (4) whether the plans of MacDonald and Merritt conformed to the plan. If the trial court was correct in its conclusion that the restrictions do not prohibit the uses planned by MacDonald and Merritt, the four fact issues posed by the court of civil appeals do not arise. In our opinion the judgment of the trial court was a correct one.

The restrictions in the 1925 deed from Enfield Realty to Hallie Bremond Houston burdened all of the property of the respondents as well as that of MacDonald and Merritt. We assume, as did the trial court, that the deed restrictions contained in all the deeds to the twenty-seven lots also extended to the remaining three lots owned by MacDonald and Merritt. When we examine all of the restrictions in context and apply to them the settled rules of construction, we conclude that the covenants in question are free of uncertainty and ambiguity. Couch v. Southampton Civic Club, 313 S.W.2d 360 (Tex.Civ.App.1958), aff'd in part in Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516 (1959); Rio Bravo Oil Co. v. Staley Oil Co., 138 S.W.2d 838, affirmed 138 Tex. 198, 158 S.W.2d 293 (1942); Couch v. Southern Methodist University, 10 S.W.2d 973 (Com.App.1928).

The deed from Enfield Realty imposed a restriction against use of the property in question for purposes other than 'residence purposes.' The restrictions stated in the deeds conveying the numbered lots in Mira Loma prohibited the construction of improvements except 'for residence purposes, or for use in connection with residences.' These restrictions do not prohibit the construction of the duplexes. 'Restrictions which, without more, merely limit the use of the property to 'residence' purposes have generally been held not to have the effect of forbidding the erection or maintenance of multiple dwellings, the courts taking the view that such terms were directed only at the type of use to be made of the property, and not at the number of families which might make such use.' Annotation, 14 A.L.R.2d 1381.

The terms 'residence purposes,' and 'residences' require the use of property for living purposes as distinguished from uses for business or commercial purposes. Southampton Civic Club v. Couch, 159 Tex. 464, 322 S.W.2d 516 (1959); Pardo...