Nash v. Connell
| Decision Date | 18 August 1953 |
| Citation | 34 Del.Ch. 20,99 A.2d 242 |
| Parties | NASH et ux. v. CONNELL et al. |
| Court | Court of Chancery of Delaware |
Howard M. Berg (of Melson & O'Hora), Wilmington, for plaintiffs.
Leonard G. Hagner, Wilmington, for defendants.
BRAMHALL, Vice Chancellor.
Plaintiffs have moved under Rule 56(c) for judgment against defendants, alleging that defendants have failed to state a legal defense to plaintiffs' complaint and that there is no triable issue set up by the pleading as to any material fact.
The complaint of plaintiffs alleges that the plaintiffs are the legal owners of three lots in a subdivision of land at Bear, New Castle County, upon which they have erected a house and in which they are presently residing; that defendant James R. Beckett resides at and is the legal or equitable owner of a lot near the lots of plaintiff; that the defendants Robert J. Connell and Marguerite G. Connell, his wife, are the legal owners of the lot in which Beckett resides by virtue of a deed duly recorded; that defendants George A. Johnson and Evelyn R. Johnson, his wife, are residents and owners of a lot in said subdivision; that the plaintiffs and defendants are bound by common restrictive covenants, restrictions and limitations found in their respective deeds, and of which they otherwise have knowledge, as follows:
'Subject Nevertheless to the restrictions and limitations that no dwelling house costing less than thirty-five hundred dollars shall be erected upon said premises or any portion thereof; that said dwelling inclusive of proches, steps, cellar doors, bay or oriel windows, cornices and other projections appurtenants thereto, when built on Wrangle Road, otherwise known as the road leading from Jesters Corner to DuPont Boulevard, shall be set back at least forty feet from Wrangle Road and when built on any other street as marked out on said plot shall be set back at least twenty-five feet from any street line; that all outbuildings shall be erected in the rear of said lot or lots; that said lands shall not be used for any purpose which creates a nuisance or which is offensive, dangerous or noxious to the immediate neighborhood; that no garage, oil station, stable or shop shall be built nearer than seventy-five feet from the street or road upon which the said lot faces and no advertising signboards shall be erected on any of the lots shown on said plot; that the said lots are not to be sold, leased, or conveyed to anyone not of the Caucasian Race; and that these covenants shall be taken to be real convenants running with the land and binding upon the heirs, executors and administrators of the parties of the second part.';
that defendants have erected a structure on their lots, which structure is now being used for living quarters as a dwelling house, in violation of that portion of the restrictive covenants which reads as follows:
'* * * that no dwelling house costing less than thirty-five hundred dollars shall be erected upon said premises or any portion thereof; * * *'.
In the answer of defendants, defendants Robert J. Connell and Marguerite G. Connell, his wife, admit the ownership of a lot: they deny that they are erecting a structure thereon. Defendants George A. Johnson and Evelyn R. Johnson, his wife, admit that they have erected on their lot a structure which is being used for living quarters. They deny however, that said structure violates the restrictive covenant above referred to for the reason that it is a part only of the complete construction which these defendants intend within a reasonable time to erect upon their lot in conformity with all restrictive...
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Scureman v. Judge
...issue of material fact is in dispute and the moving party is entitled to judgment as a matter of law. Ch.Ct.R. 56(c); Nash v. Connell, Del.Ch., 99 A.2d 242 (1953). The moving party has the burden of establishing to the satisfaction of the Court the absence of any genuine issue of material f......
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...exists, a motion for summary judgment must be denied. Gamble v. Penn Valley Crude Oil Corp., Del.Ch., 104 A.2d 257 (1954); Nash v. Connell, Del.Ch., 99 A.2d 242 (1953); Hurtt v. Goleburn, Del.Supr., 330 A.2d 134 Accordingly, defendants' Motion is granted in part as to the issue of the impro......
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...genuine issue of fact is on the moving party. Brown v. Ocean Drilling & Exploration Co., Del.Supr., 403 A.2d 1114 (1979); Nash v. Connell, Del.Ch., 99 A.2d 242 (1953). As a general rule, money paid due to a mistake of law is not recoverable, while money paid under a mistake of fact may be r......
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Rose v. Cadillac Fairview Shopping Center Properties (Delaware) Inc.
...to the non-moving party, the court finds no genuine issue of material fact, summary judgment is appropriate. See Nash v. Connell, Del.Ch., 99 A.2d 242, 243 (1953). However, summary judgment may not be granted when the record indicates a material fact is in dispute or if it seems desirable t......