Mercer v. Keynton
| Decision Date | 27 September 1935 |
| Citation | 163 So. 411,121 Fla. 87 |
| Parties | MERCER v. KEYNTON et al. |
| Court | Florida Supreme Court |
Rehearing Denied Oct. 16, 1935.
En Banc.
Suit by Mattie L. Mercer, suing by and through her husband and next friend, J. H. Mercer, against Ida M. Keynton and others. From an order dismissing her bill, the plaintiff appeals.
Judgment reversed. Appeal from Circuit Court, Dade County; Worth W Trammell, judge.
Clark & Ellis, of Miami, for appellant.
Frank Smathers and T. E. Price, both of Miami, for appellees.
In June, 1930, appellant, Mattie L. Mercer, joined by her husband J. H. Mercer, exhibited her bill of complaint in the circuit court of Dade county, against appellees, Ida M Keynton and her husband, A. J. Keynton, and Robert J. Garlick, to enforce the building restrictions and abate the nuisance resulting from the construction and operation of a gasoline filling station on lot 1, block 2, Bayonne subdivision of Miami, Fla., the plat thereof being recorded in the office of the clerk of the circuit court of Dade county in Book 2 of Plats at page 35. The bill contains a prayer for general and specific relief. A demurrer and exceptions to the bill were overruled, and on final hearing the cause was dismissed. This appeal is from the final decree.
The first question argued in this court may be thus stated: Are building restrictions valid and binding upon the owner of real property who purchased with actual or constructive notice of such restrictions, and are they enforceable in equity in an action against the owner by the adjoining owner who purchased relying on such restrictions?
The record disclosed that lot 1, block 2, Bayonne subdivision of Miami, was formerly a part of lot 9, Samuel Filer's subdivision of Dade county, that said lot 9 was owned by R. C. Gardiner, and that R. C. Gardiner and the owners of lot 8 in Samuel Filer's subdivision of Dade county made an agreement to combine and subdivide the said lots into a new subdivision to be known as Bayonne. This agreement was recorded May 20, 1912, in Deed Book 87, at page 247, of Dade county, and among other things provides as follows:
'It is furthermore understood and agreed that the plat showing the width of the lots, the depth of the lots, and the location of the building line shall be a part of this agreement; that not more than one dwelling house shall be built on any one lot and no house shall be built for more than one family, and that no dwelling house shall be erected upon any lot facing Morth and South nearer than thirty-five feet to the front line of said lot, and each house shall be built in the center of the lot from the East to West upon which same is situated; no dwelling house shall be built upon any lot in Bayonne Subdivision that shall cost less than $2,000.00.'
In December, 1923, Ida M. Keynton entered into an agreement with R. C. Gardiner to purchase lot 1, block 2, Bayonne subdivision, and immediately went into possession of it. The contract from Gardiner to Mrs. Keynton contained the following provision:
'It is agreed and understood that the parties of the first part are to include in said deed above provided for no restrictions whatsoever except such restrictions as are set forth on the plat of Bayonne Subdivision as recorded in Plat Book 2, page 35, of the records of Dade County, Florida, and such restrictions as are contained in former deeds of conveyance covering the above described land.'
In December, 1927, Mattie L. Mercer purchased lot 2, block 3, Bayonne subdivision, and went into possession of it in February, 1928. She has continued to occupy same as her home. Both lots 1 and 2 had dwelling houses on them when purchased. In 1925 the city of Miami constructed a 100-foot boulevard from Thirteenth street south to Fifty-Fourth Street North, which resulted in the condemnation and acquirement by the city of all of Mrs. Keynton's lot except 20 feet on the west side. In 1927, after this acquisition by the city, Mrs. Keynton moved the dwelling house on her lot 45 feet to the south end, and in March, 1928, commenced the construction of a two-story, concrete block building thereon, which since its completion has been used as a filling station under lease to the defendant Garlick. The filling station covers the entire north end of lot 1, block 2. The first story contains the usual equipment for a gasoline filling station and the second story is used for an office.
In April, 1928, Mattie L. Mercer brought a suit in equity to enjoin the erection of said filling station on the ground that it violated the building restrictions and detracted from the value of her lot. The application for temporary restraining order was denied without prejudice, which decree on appeal to this court was affirmed. Mercer v. Keynton, 99 Fla. 914, 127 So. 859, 861.
In affirming the decree denying the temporary restraining order, we held that the defendants had constructive notice of the restrictive covenants because they were contained in the recorded muniments of title, and that, being of record in the chain of title, they could be enforced in appropriate proceedings duly and timely taken. We further held that, 'In view of the delay of the complainants in bringing the suit until the construction of the building had progressed so far as to make it inequitable to grant an injunction unless a nuisance is developed, and in consideration of the available remedy by an action at law for damages to the complainants proximately resulting from a breach of the restrictive covenants that are binding on the defendants, and not waived or abandoned, the order denying an injunction without prejudice to the legal or equitable rights of the complainants is affirmed.'
After the rendition of said judgment, Mattie L. Mercer brought a common-law action against Ida M. Keynton to recover damages for the breach of the restrictive covenants. This resulted in a judgment for the defendant on demurrer, which went to the sufficiency of the declaration. Said judgment was on appeal affirmed by this court. Mercer et al. v. Keynton, 104 Fla. 730, 140 So. 796. We further held that a lot owner could not recover for another's breach of restrictive covenants where defendant, holding under common grantor, was not privy to the contract.
The foregoing cases of Mercer v. Keynton, reported in 99 Fla 914, 127 So. 859, and Id., 104 Fla. 730, 140 So. 796, would appear to...
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