Macy v. Wormald

• Decision Date: 19 June 1959
• Parties: Henry MACY et al., Appellants, v. Florence WORMALD et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 212

329 S.W.2d 212

Henry MACY et al., Appellants, v. Florence WORMALD et al., Appellees.

Court of Appeals of Kentucky.

June 19, 1959.

Rehearing Denied Dec. 18, 1959.

Benton, Benton, Luedeke & Rhoads, Newport, for appellants.

Robert B. Halloran Newport, Sawyer A. Smith, Covington, for appellees.

CLAY, Commissioner.

This suit was brought to enjoin defendant appellees from violating a deed restriction by the erection of an apartment house in a residential subdivision. The Chancellor determined that the proposed building did not violate the restriction.

The lot involved, in Lakeside Park Subdivision, was subject to the following restriction prior to its conveyance to defendant Wormald:

'Said lots shall be used only for residence purposes, and only one residence shall be erected upon each lot * * *.' (Our emphasis.)

The deed to defendant Wormald purported to amend the restriction by providing 'said residence shall contain not more than 4 units.' This suit was filed when defendant Wormald began construction of a four-unit apartment house on the lot.

It seems clear to us from a simple reading of the original restriction above quoted that 'only one residence' means exactly what it says and that it cannot be stretched to mean four residences. The noun 'residence' itself is singular, and the definitions in Webster's New International Dictionary all indicate that a residence is a dwelling place or abode of a single person or family unit. This likewise the commonly understood meaning. As said in Gerstell v. Knight, 345 Pa. 83, 26 A.2d 329, 330, involving an identical restriction:

'We have no doubt about the meaning of the words in question; they mean exactly what they say, and in that sense should be given effect. It is unnecessary to consider near-synonyms nor to resort to rules of construction. The question simply is whether one family or a number of families should at one time occupy the land.'

As said in Johnston v. Parkin, 33 Ohio App. 174, 168 N.E. 755, 756, which involved the identical language and exactly the same kind of apartment house we have before us:

'We are satisfied that the original allotter, when he used the expression 'only one residence shall be erected on any lot,' intended that any residence building erected thereon should be used as a one-family residence, as the phrase is commonly used and understood by people who buy and sell real estate; and when the defendant attempts to erect a building on her lot for the purpose of having four single residences in one building she violates the plain and ordinary meaning which should be and is given to the word 'residence,' and her attempt is as much a violation of the restrictions as though she were attempting to erect four single residences upon said lot--which right, of course, the defendant would not claim.'

Instead of accepting the obvious meaning of this language and abiding by the clear intention of the original grantor in the establishment of this residential subdivision, it is insisted we should resort to a hypertechnical dissection of the...