Moore v. Smith

• Decision Date: 25 June 1969
• Docket Number: No. B--891,B--891
• Citation: 443 S.W.2d 552
• Parties: Weaver MOORE et al., Petitioners, v. Lloyd H. SMITH et al., Respondents.
• Court: Texas Supreme Court

Page 552

443 S.W.2d 552

Weaver MOORE et al., Petitioners, v. Lloyd H. SMITH et al., Respondents.

No. B--891.

Supreme Court of Texas.

June 25, 1969.

Rehearing Denied July 30, 1969.

Williams, Lee & Lee, James W. Lee and Jesse J. Lee, Cleaves & Cleaves, Wilbur S. Cleaves, Butler, Binion, Rice, Cook & Knapp, Jack Binion, William C. Perry and Claude C. Roberts, Houston, John W. Stayton, Austin, for petitioners.

Hutcheson, Taliaferro & Grundy, Thad Hutcheson, John D. Roady, and Thomas N. Crowell, Houston, for respondents.

CALVERT, Chief Justice.

The respondents, as plaintiffs, sought a trial court judgment declaring that certain building and use restrictions imposed by a written instrument on lots in 'Shadyside', an exclusive residential subdivision of the City of Houston, were of permanent or indefinite duration, and, alternatively, for other relief, the nature of which is unimportant to our decision. Petitioners, as defendants, sought a judgment declaring that the restrictions would terminate on June 30, 1969, and, alternatively, that they were invalid, ineffective and unenforceable.

The trial court rendered judgment on August 4, 1966, declaring that the restrictions would expire automatically on June 30, 1969. The judgment also declared that the restrictions were not otherwise invalid, unreasonable or unenforceable. The plaintiffs appealed to the court of civil appeals where their principal complaint related to the trial court's declaration that the restrictions would expire. The defendants filed a cross-appeal in which they complained of those portions of the judgment which declared the restrictions valid and enforceable until they expired.

The court of civil adppeals reversed that part of the trial court's judgment which declared that the restrictions would expire on June 30, 1969, and rendered judgment that they are of perpetual or indefinite duration; expressly affirmed that part of the judgment declaring the restrictions to be valid and enforceable until June 30, 1969; and purported to reverse the trial court's judgment in another respect to be mentioned later in this opinion. 425 S.W.2d 856. As the case reaches this court, the principal question to be decided is whether the restrictions will expire automatically on June 30th. We hold that they will not.

Shadyside was developed by J. S. Cullinan, a prominent Houston business and civic leader, and was created by a written instrument executed on July 1, 1919 by Cullinan, as grantor, and by W. W. Moore, Henry Stude and H. A. Kipp, as trustees. The instrument is quoted in full in the opinion of the court of civil appeals. 425 S.W.2d 857--861. Only those provisions deemed to be important to our decision will be quoted in this opinion.

The instrument is captioned, 'Agreement Creating Shadyside'. It contains eight unnumbered paragraphs, followed by nineteen numbered paragraphs which are followed, in turn, by two more unnumbered paragraphs. The opening sentence of the first unnumbered paragraph begins with this language: 'THIS TRUST AGREEMENT AND CONVEYANCE * * *.' The second and third paragraphs are unimportant to our decision. The fourth unnumbered paragraph recites that the grantor as owner of certain land has subdivided it into residence lots, roadways, etc., as shown on an attached map, and that he is desirous of 'making provisions for administration of the properties and of creating certain restrictions in regard to the lots therein.' The attached map or plat depicts 24 lots, lettered A through X, ranging in size from 6/10ths of an acre to more than 5 acres, with each lot containing a delineated building space and planting areas. The fifth unnumbered paragraph is the granting clause of the instrument. It recites that 'in consideration of the premises' and 'for the further purpose of creating a Trust as hereinafter defined,' the grantor does grant, bargain, sell and convey 'unto the said Trustees above named, and to their successors as such * * * as long as this Trust shall endure, subject in all respects to the further terms of this instrument, all and singular the following property, to wit: (Here follows in unnumbered paragraphs 6 and 7 a description of tracts of land of 36 and 1.1 acres, respectively.)' The description of the 1.1 acre tract in unnumbered paragraph 7 is followed by this proviso:

'* * * provided, however, that of said property there is excepted from this conveyance and reserved to the Grantor, title to each and all of the twenty-four lots designated by letters upon said map from A to X, both inclusive, but in respect to such lots certain restrictions are provided and shall apply as hereinafter set forth.'

The eighth unnumbered paragraph is in the form of an habendum clause. It recites that the premises are to be held by the 'Trustees, their successors and assigns * * * so long as this Trust shall endure; all, however, to be held in Trust for the uses, intents and purposes, and subject to the terms, restrictions, and conditions hereof as follows:'

The first numbered paragraph limits the life of the trust. It reads:

'1. This Trust shall endure during the lifetime of the survivor of the three Trustees named herein, and for twenty-one years thereafter; not, however, to exceed the period ending June 30, 1969.'

Paragraphs 2, 3, 4, 5, 6, 7 and 8 prescribe the duties of the trustees with respect to the property conveyed; provide for the appointment and qualification of successor trustees; designate the lot owners as beneficiaries of the trust, and define their rights and obligations with respect to the property in the trust. Paragraph 9 directs attention to the fact that each lot contains a delineated building space and a separately designated planting space, and provides: '(A)ll buildings and other overhead structures shall in every case be confined to such Building Space, and no such shall be erected on the Planting Space.' Paragraph 10 provides:

'10. There shall be but one home erected on each lot, the construction of which shall be commenced within two years from the date of the sale of such lot.'

Paragraph 11 authorizes the trustees to eliminate building lines if an owner of two or more lots wishes to use them as a single residence site. Paragraph 12 prescribes a limited area, five feet in width, in which poles, lines and overhead wires may be erected, and continues: '* * * but no such shall be permitted on any other portion of said premises; but in lieu of such, underground conduits for wires, and pipes for water, gas, etc., shall be provided and located on each lot in the space reserved therefor * * *.' Paragraphs 13, 14, and 15 provide that the trustees may become lot owners, and that they may charge to lot owners expenses legally incurred against the properties, but that they may not by their contracts bind themselves or the other lot owners personally. Paragraph 16 makes the right to use the property conveyed in trust an easement appurtenant to each lot. Paragraph 17 reads:

'17. No business house or houses, saloon, hospital, public boarding house, place of public entertainment, store, livery stable, or other place of business or public resort, shall ever be erected on any part of said land, nor shall any telegraph, telephone or electric light poles or overhead structures ever be erected on any part of said property except on a space five feet in width along the West line of the larger tract.'

Paragraph 18 provides that if the grantor or any of the lot owners shall infringe or omit to perform 'any of the covenants, conditions, or restrictions * * * relating to such lots or to any other premises herein described * * * it shall be lawful for the Trustees for the time being * * *' to file and prosecute injunction or damage suits for themselves or on behalf of the lot owners. Paragraph 19 provides that the title to all property in the trust shall, upon termination of the trust, vest in the City of Houston for the benefit of the public, unless the trustees, by direction of a majority of the lot owners, shall provide otherwise.

The first unnumbered paragraph following the nineteen numbered paragraphs authorizes the trustees and their successors to employ collectors, accountants and other agents at the expense of the trust, and provides that each trustee shall be liable only for his own willful defaults. The second such unnumbered paragraph is the attestation clause.

The instrument and the map were recorded in the office of the County Clerk and all conveyances of lots in the subdivision were made with reference thereto.

Petitioners do not contend, but expressly disavow any contention, that the twenty-four lots on which the building and use restrictions are imposed are a part of the trust res. They thus recognize that the effect of the exception and reservation quoted above from unnumbered paragraph 7 was to place in the trust, as a part of the trust res, only the roadways, sidewalks, esplanades, etc. What petitioners do contend is that the written instrument, when viewed and considered from its four corners, clearly discloses that it was the intention of Cullinan, the grantor-trustor, to create a 'general plan or scheme for the development, use, maintenance and management of Shadyside as a residence area' for a limited period of time, and thus that the restrictions on lots, although not a part of the trust or governed by the trust provisions, should, nevertheless, terminate when the trust and the trust provisions terminate. The trial court agreed with this contention. The court of civil appeals disagreed with it. We disagree with it and agree with the court of civil appeals.

The intention of the grantor-trustor, Cullinan, to restrict the lots against use for business or commercial purposes in perpetuity or indefinitely is clearly evidenced by the language of paragraph 17. He said, in effect, that the lots in Shadyside should Never ¹ be used for business or commercial purposes, and that no utility poles or lines should ...