Morris v. Tuscaloosa Mfg. Co.

• Decision Date: 15 February 1888
• Citation: 83 Ala. 565,3 So. 689
• Court: Alabama Supreme Court
• Parties: MORRIS ET AL. v. TUSCALOOSA MANUF'G CO.

3 So. 689

83 Ala. 565

MORRIS ET AL. v. TUSCALOOSA MANUF'G CO.

Supreme Court of Alabama

February 15, 1888

Appeal from chancery court, Tuscaloosa county; THOMAS COBBS Chancellor.

Cochrane & Fitts and Hargrove &amp Vandegraaff, for appellants.

Wood & Wood, for appellee.

STONE C.J.

Baugh, Kennedy & Co., copartners, owned a large tract of land in the country, on which they had erected and were operating cotton-mills, a private enterprise. They sold to one Cree a half acre of their lands, described by metes and bounds; the contract of sale expressing certain reservations in the grantors. Two deeds to Cree are found in the transcript. The first bears date December 10, 1875, and purports to have been executed by Baugh, Kennedy & Co. in their partnership name. It is, in form, an ordinary deed of bargain and sale, with covenants of warranty implied from the words "grant, bargain, sell, and convey." It contains this condition in the habendum clause, declared to be "absolute and perpetual, viz., that said lot is to be used by the party of the second part, (Cree,) his heirs and assigns, as a residence only, and not for the purpose of a trading-house, or house or place for the sale of groceries, liquors, or merchandise of any kind or description whatever." This paper, perhaps, failed to convey the legal title, for more reasons than one, but we need not specify them. Baugh, Kennedy & Co. became bankrupt, and their assignees, reciting that Cree had paid the purchase money, $10, to the said Baugh, Kennedy & Co., conveyed the lot to Cree by quitclaim deed, bearing date in 1879. That deed contains "the following conditions and reservations: The said lot or parcel of land to be used by said vendee only as a residence or homestead, and not otherwise; and in particular no mercantile transactions, or other business, by any person occupying the same." Cree, by deed without covenants, dated in 1883, conveyed the lot to Morris, one of the appellants, who, in company with his son, commenced to do a mercantile business on the lot, The lands on which the cotton-mills were situated,-the entire tract which had been of the estate of Baugh, Kennedy & Co., together with everything connected with the manufacturing enterprise,-were sold at bankrupt sale, and a company became the purchasers, and received the conveyance. They thereupon incorporated themselves under the name of the "Tuscaloosa Manufacturing Company," and are now operating the mills in that name. The present bill filed by the corporation, prayed and obtained an injunction against Morris & Morris, restraining them from conducting a mercantile business on said lot; and at the hearing the injunction was made perpetual. From that decree the present appeal was prosecuted.

The sole question is whether the reservation in the deed should be enforced by injunction. The attack is made on the right, not on the remedy; for, if the right be conceded, and its enforcement be not against public policy, there is no question that injunction is the only redress which is efficient and adequate. Parkman v. Aicardi, 34 Ala. 393; Webb v. Robbins, 77 Ala. 176: McMahon v. Williams, 79 Ala. 288. The following facts are clear and indisputable: Baugh, Kennedy & Co. owned the lands in fee. Both parties to this controversy claiming derivatively from them, each is estopped from disputing their title. Owning the land in fee, they could not be compelled to sell or dispose of it, except by the assertion of the right of eminent domain, not pertinent to this case, nor claimed to be. Having the right to sell, that company could sell and convey a fee, or less than a fee; and the quantum of interest they would sell and convey must of necessity have depended on the agreement they and the purchaser might make. They sold and conveyed a title, limited in its use, with a restriction that it should not be employed as a place for the sale of merchandise. The purchaser accepted the conveyance, with this limitation imposed on his right of use. He cannot complain, for he purchased and paid for only a qualified use; and, the limitation being expressed in the face of his title, all men coming in under him are charged with knowledge of it. Johnson v. Thweatt, 18 Ala. 741; Dudley v. Witter, 46 Ala. 664. The benefit of this reservation or servitude follows the lands of the seller-the dominant estate-into whose hands soever it may pass, and against any and all persons who succeed to the servient estate, with notice, actual or constructive, of the limitation or servitude resting upon it. Washb. Easem. (4th Ed.) 37; Webb v. Robbins, 77 Ala. 176; McMahon v. Williams, 79 Ala. 288.

The real contention in this case is that the reservation or limitation was incorporated in the deed for the purpose of retaining in the manufacturing company a monopoly in the sale of merchandise; that such monopoly is contrary to public policy; and that the court of chancery, which is a court of conscience, will not lend its aid to the perpetuation of such a scheme. The authorities mainly relied on in support of this argument are Trustees v. Thacher 87 N.Y. 311, 41 Amer. Rep. 365; and Foll's Appeal, 91 Pa. St. 434, 36 Amer. Rep. 671. In the first of these cases, two land proprietors owned adjacent lands in the city of New York. The lands were high up town, beyond the range of business enterprises, and were well adapted to family residences. For mutual benefit they entered into a covenant, one with the other, "that only dwelling houses should be erected thereon, and not to carry on, or suffer any kind of manufactory, trade or business thereon." There does not appear to have been any inducement to this contract and covenant, save the profit or comfort each was...