Pardo v. Southampton Civic Club

• Decision Date: 19 April 1951
• Docket Number: No. 12258,12258
• Citation: 239 S.W.2d 141
• Parties: PARDO et al. v. SOUTHAMPTON CIVIC CLUB et al.
• Court: Texas Court of Appeals

Page 141

239 S.W.2d 141

PARDO et al. v. SOUTHAMPTON CIVIC CLUB et al.

No. 12258.

Court of Civil Appeals of Texas, Galveston.

April 19, 1951.

Rehearing Denied May 10, 1951.

Emmet Alpha, Jr., of Houston, for Pardo.

Fulbright, Crooker, Freeman & Bates, Newton Gresham and L. Keith Simmer, all of Houston, for Southampton Civic Club and others.

MONTEITH, Chief Justice.

This action was brought by the members of Southampton Civic Club for a judicial construction of the wording used in the restricting of lots in Southampton Place Addition to the City of Houston, and seeking a permanent injunction restraining Mrs. Blondelle Ruby Pardo and her assigns from using or causing Lot 10 in Block 45 of said addition to be used for any purpose other than as a dwelling and residence for a single family.

In a trial before the court judgment was rendered restraining Mrs. Pardo until April 15, 1973, from using or permitting the use of said property for the manufacture or sale of intoxicating liquor or for conducting any noxious trade or business and from using or permitting its use for wholesale or retail business of any kind. The court decreed that the property might be used for a bona fide place of single family residence and at the same time for business purposes not therein specifically enjoined.

Both sides have appealed from the court's judgment wherein it decreed that Mrs. Pardo might use said lot for a joint business and residential purpose.

On application of all parties the trial court prepared and filed his findings of fact and conclusions of law. The material facts in the case are undisputed. They were the subject of stipulation in the trial court. Mrs. Blondelle Ruby Pardo purchased said Lot 10 in Block 45 of Southampton Place Addition in February, 1948. Shortly after she purchased the property she rented the house located on the property to a partnership doing business as Grebe and Doremus Processing Company, for business purposes. This action was filed in March, 1949, to restrain and enjoin such use.

Southampton Addition was placed on the market for home builders in 1922, after a trust agreement had been entered into between E. H. Fleming, its developer, and the San Jacinto Trust Company, trustee. A reference incorporating the trust agreement and restrictions was placed in each deed to lots sold in the addition, including Lot 10 in Block 45, which was sold to Mrs. Pardo on February, 1948.

The parts of said trust agreement embodying the restrictions material to this appeal read:

'Know All Men by These Presents: That E. H. Fleming, hereinafter styled First Party, and sometimes styled Trustor, and the San Jacinto Trust Company, hereinafter styled Trustee, both of the City of Houston, Harris County, Texas, have this day entered into the following Trust Indenture and Agreement as follows, to-wit:

'That whereas the said First Party has originated a plan or project to purchase, improve and subdivide as a high class and exclusive residential and business community that certain tract or parcel of land situated in Harris County, Texas * * * such subdivision to be known as the Southampton Addition to the City of Houston, Texas, and * * *.'

In Article VI, 'Basic Restrictions,' after stating that 'in furtherance of the plan for the improvement of the property herein described, the following basic restrictions are hereby declared * * *,' appears the pertinent restrictions here involved, which are here set out in full:

'(a) That there shall never be erected, permitted, maintained or carried on upon any of said property any saloon, or place for the sale or manufacture for sale of malt, vinous, or spirituous liquors; any foundry, brick yard, cemetery; any establishment for the care or cure of persons afflicted with tuberculosis, or any institution for the cure or restraint of the mentally impaired, or any detention home, reform school, asylum, or any institution of like or kindred nature; not any slaughter house or tannery or any noxious interest, trade or business.

'(b) That no part of said property shall ever be used for the purpose of wholesale or retail business of any kind excepting such portions as may be especially designated by the First Party for that purpose, and such designations shall be especially set forth in the particular deed or deeds

'No apartment house or duplex will be permitted in the Addition; the object of this provision being to prohibit multiple housing throughout the entire Addition.'

It is the well settled rule in this state that the law recognizes the right of parties to contract with relation to property as they aee fit, provided they do not contravene public policy and provided their contracts are not otherwise illegal. Braswell v. Woods, Tex.Civ.App., 199 S.W.2d 253, writ of error refused, no reversible error, and the authorities there cited. It is also well settled that, where the owner of a tract of land subdivides it and sells distinct parcels thereof to separate grantees, imposing restrictions upon its use pursuant to a general plan of development or improvement, such restrictions may be enforced by any grantee against any other grantee upon the theory that there is a mutuality of covenant and consideration, and that mutual negative equitable easements are created. Braswell v. Woods, supra.

It is undisputed in the record that the lots in Southampton Addition were restricted to the...