Plaster v. Stutzman

• Decision Date: 21 June 1928
• Docket Number: (No. 9198.)
• Citation: Plaster v. Stutzman, 8 S.W.2d 750 (Tex. App. 1928)
• Parties: PLASTER v. STUTZMAN.
• Court: Texas Court of Appeals

8 S.W.2d 750

PLASTER v.STUTZMAN.

(No. 9198.)

Court of Civil Appeals of Texas. Galveston.

June 21, 1928.

Rehearing Denied July 12, 1928.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Suit by W. S. Stutzman against W. A. Plaster and others.Judgment for plaintiff, and defendant named appeals.Affirmed.

J. S. Bracewell, of Houston, for appellant.

Leon L. Mott, of Houston, for appellee.

LANE, J.

This suit was brought by appellee, Stutzman, against appellant, Plaster, O. O. Ballard, and Park Terrace Company, a corporation, to restrain them and each of them from making use of a certain garage erected by appellant, Plaster, on lot 1 in block 5, of a subdivision in the city of Houston known as Park Terrace, situated near to the residence property of appellee.

The plaintiff alleged, substantially, that the property in the subdivision was duly platted by its owners, Park Terrace Company, and the lots therein sold under a general plan of restrictions, requiring all residences erected therein to cost not less than $2,500, and prohibiting the use of any building erected therein constructed for a barn, garage, or for any purpose other than for a residence, from being used as a residence; that such restrictions were put in force by Park Terrace Company for the purpose of enchancing the value of lots in the subdivision for the benefit of the company and for all those who might purchase a lot therein; that such restrictions were written into the deeds of every person who purchased a lot in said subdivision; that the lots in the subdivision were advertised for sale and sold under said general plan of restrictions.

He alleged that appellant, Plaster, had breached said restrictions and was residing in a garage constructed by him at a cost of less than $1,000 on lot 1 in block 5 of the subdivision, to which he has attached sleeping quarters for use by himself and family, over the protest of the plaintiff.

Appellant, Plaster, answered by general demurrer and special exceptions as follows:

"That the petition did not allege that the building restrictions had been complied with by other grantees in said subdivision; that plaintiff did not allege that he himself had complied with such building restrictions; that said petition showed upon its face that defendant was occupying said property merely as a temporary residence and that the injuries alleged in the petition were vague and indefinite.Answering further, by general denial and for special answer, alleged that he was holding such property under a contract with defendantO. O. Ballard; that he had entered upon the property and erected a garage and was using the same as a temporary residence until he could build a residence in substantial compliance with the building restrictions, all of which was agreed to and acquiesced in by defendant Ballard; that such garage in the manner of its use did not, in any manner, injure plaintiff's property; and, further, that it was a custom in said subdivision for purchasers to erect a garage first and use the same as a temporary dwelling while the main dwelling was being erected; that there was another temporary residence in said subdivision in similar condition to that of defendant, and plaintiff had not complained of said residence; that plaintiff himself had violated the covenants contained in the restrictions of said subdivision in the manner of erecting his fences; that there were many restrictions contained in the contracts and deeds under which said property was sold, and few of said restrictions had been complied with; that plaintiff had never complained of any other violation of restrictions, and was estopped to rely thereon."

Facts.

The Park Terrace Company, a corporation, owned a small tract of land in 1923 near the city of Houston.This company, in a general plan or scheme of development, subdivided said land into lots, blocks, and streets as a residential district.It prepared and distributed quantities of advertising matter, in which it was stated that in Park Terrace every convenience had been added — lights, water, sewerage, paved streets and walks, and restrictions applying to all tracts.Under the plan and scheme, lots were sold to several parties, among whom was appellee, Stutzman.All deeds by which the lots were sold contained, among other provisions, the following:

"No building to be used as a dwelling shall ever be erected or placed on said premises, the original cost of which shall be less than $2,500.00, said amount to include cost of residence proper only, and not include outhouses, walks, fences, or other improvements, and no building constructed for purposes other than a residence shall be used or occupied as a residence."

"The above restrictions shall be in force for a period of 19 years from August 1, 1923, and any and all of said restrictions may be extended as to any part of or all of said subdivision for an additional period not to exceed 25 years, provided the owners of a majority of the lots in Park Terrace, who are actual bona fide residents thereof, shall, prior to January 1, 1940, execute and acknowledge an agreement making an extension of said period of 19 years and file the same of record at the office in Harris county, Texas, where conveyances of real estate may be required to be filed, and said latter agreement may provide for subsequent extensions, none of which shall exceed 25 years."

"These restrictions shall be covenants running with the soil, and will be a limitation and condition of the deed when issued."

Appellee, Stutzman, purchased from the Park Terrace Company lot 7 in block 2 of the subdivision in 1924, and erected thereon his residence at a cost of $4,500.After Stutzman built his dwelling house, appellant, Plaster, in March, 1927, having an oral contract with O. O. Ballard, the president of Park Terrace Company, for the purchase of lot 1 in block 5 of the subdivision, began the construction of a building on the rear part of said lot as a garage to cost about $300.

On March 28, 1927, Ballard entered into a written contract with appellant to sell him the lot above mentioned.After the completion of the garage building, appellant, Plaster, with his family, occupied it as a residence about the 3d day of April, 1927, and has continued to do so since, but intended to so occupy it only until he was able to build a residence.

Appellant testified that his written contract put him on notice as to the restrictions hereinbefore mentioned; that notwithstanding such notice he went ahead and built that garage and moved into it with his family, because he was not able to build a residence to cost $2,500, and would not be able to do so for at least 18 months.He admitted that he was living in the garage in violation of the restrictions, but stated that one or two other persons were, and had for some 2 years been violating the restrictions; that appellee, Stutzman, had violated them by building a fence, forbidden by the restrictions, and permitted it to remain until after he(appellant) had filed his answer on this suit.

O. O. Ballard, president, and Earl Bradley, secretary, of Park Terrace Company, testified that from the beginning it was the intention of the promoters of Park Terrace to subdivide the property as a residential district and have restrictions covering all of the lots in the subdivision, and to have all the restrictions incorporated in all the deeds; that the restrictions were adopted when the property was first put on the market, and were meant to apply to the whole property for the benefit of all purchasers as well as the company.

The case was tried before the court without a jury, and, at the conclusion of the evidence, judgment was rendered perpetually enjoining the defendants as prayed for by the plaintiff, to be effective on and from the 29th day of March, 1928.Defendant Plaster has appealed.

By his first and second assignments, appellant substantially insists that the court erred in permitting O. O. Ballard, president of the Park Terrace Company, and Earl Bradley, its secretary, to testify, over his objection, that the restrictions adopted by said company, and which were written into the deed of appellee, were intended for the benefit of all the purchasers of lots in the subdivision as well as for the benefit of the company; and by his sixth and seventh assignments he insists that the evidence properly admitted was wholly insufficient to show that the restrictions adopted were imposed and intended for the benefit of purchasers of lots in the subdivision as well as for the benefit of the grantor, and therefore the court erred in rendering judgment for appellee.

Appellant, Plaster, testifying in his own behalf, stated substantially that he had a written contract dated March 28, 1927, for the purchase of his lot; that the contract was made between himself and Mr. Ballard, president of Park Terrace Company; that the contract put him on notice of the restrictions adopted by the company applicable to all lots in the subdivision; that he built his garage knowing of the restrictions; that he talked to President Ballard about building his garage before he built it, and he agreed to let him build it for a temporary residence; that he got permission from the owners of lots on each side of his lot; that they had no objection, and he did not see why appellee should object.

O. O. Ballard, president of the company who sold the lot to appellant, called as a witness by appellant, testified on direct examination that he explained the restrictions to appellant, and read to him the contract containing such restrictions, and told him that, if the neighbors did not object to his temporarily occupying the garage as a residence, he(Ballard) would not object, but that he had no authority to waive the restrictions for the company; that, if no one else objected, he had no personal objection.

The objection urged to the testimony was that it was not the best...