Sayles v. Owens

• Decision Date: 13 March 1942
• Docket Number: No. 2287.,2287.
• Citation: 161 S.W.2d 542
• Parties: SAYLES et al. v. OWENS et al.
• Court: Texas Court of Appeals

161 S.W.2d 542

SAYLES et al. v. OWENS et al.

No. 2287.

Court of Civil Appeals of Texas. Eastland.

March 13, 1942.

Rehearing Denied April 17, 1942.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Suit by Mrs. Maggie F. Owens and another against John Sayles and others to enjoin defendants from interfering with plaintiffs' use of a tract of land. From a judgment for plaintiff, defendants appeal.

Reversed, and temporary injunction dissolved.

Sayles & Sayles, of Abilene, for appellants.

Smith & Eplen and R. W. Haynie, all of Abilene, for appellees.

GRISSOM, Justice.

In 1887 Thomas H. Gunn owned Blocks O and D, the West 1/2 of Blocks N, K, H and E and Block C and the West 1/2 of Block B in the Herman Ward Survey No. 90, City of Abilene. On May 18, 1887 Gunn conveyed to Abilene City Land and Improvement Company Blocks O and D and the West 1/2 of Blocks N, K, H and E out of said survey. The deed was recorded in the Deed Records of Taylor County. It recited:

"Know all men that whereas, I am the owner in fee simple of the blocks of land hereinafter described which the * * * Improvement Company is desirous of purchasing for the purpose as stated in its charter of beautifying the same by planting trees thereon and selling the same in such size lots as the directors might determine to actual settlers only who would build thereon within the time fixed by its Board of Directors residences of not less value than twenty-five hundred dollars.

"Now, therefore, in consideration of the premises and the sum of Three Thousand One Hundred Fifty Dollars cash to me in hand paid by the said * * * Improvement Company * * *

"Conveys: All of Block O and D and the West 1/2 of Blocks N, K, H and E out of the Herman Ward Survey No. 90 of the City of Abilene, Taylor County, Texas, as shown by the plat hereunto attached and made a part hereof; the property covered by the streets marked on said plat is embraced in this conveyance to said * * * Improvement Company, except such streets as have heretofore been dedicated to the Public as shown by plat recorded in records of Taylor County, Texas, to which reference is made. It is also understood that the whole Blocks J and I heretofore sold by me are also to be acquired by said * * * Improvement Company and that they are to be improved and sold as above provided. As a part of the consideration of this transaction; I agree to sell no part of Block C and no part of the west 1/2 of Block B in said Herman Ward Survey No. 90, City of Abilene, except to actual settlers who will agree to erect thereon within the time fixed by the Directors of the * * * Improvement Company, residences of not less than $2500 a piece and with the stipulation that no subdivision of any part of said property shall be sold no matter in whose hands the same may be except upon the above conditions."

Blocks J and I theretofore sold by Gunn were soon after the execution of said deed acquired by the Improvement Company. The Improvement Company obtained a charter from the State in May 1887. Its purpose, as stated therein, was:

"Second: The Company is formed for the purpose of purchasing, subdividing and selling land in the city of Abilene, Taylor County, Texas.

"Third: Also for the purpose of purchasing Blocks D, I, J, and O and the West 1/2 of Blocks N, K, H, and E in the Herman Ward Survey No. 90, City of Abilene, Taylor County, Texas, and for the purpose of beautifying blocks by planting trees thereon, and for the purpose of selling the same and the subdivisions thereof to such actual settlers only who will in such time as the directors may fix erect residences thereon of not less value than $2500 a piece, said property to be divided into such lots as the directors may from time to time agree upon. All other property purchased by the Company except the above designated blocks shall be controlled by the Board of Directors and sold on such terms and conditions as the Board of Directors may from time to time establish."

Said charter was recorded in the Deed Records of Taylor County.

In 1890 the heirs of Gunn conveyed to Henry Sayles the whole of Block C and West 1/2 of Block B of said Herman Ward Survey. Said deed contained no restrictions or covenant referable to the purposes for which said land might be used. On October 15, 1906, the charter of the Improvement Company was amended as follows: "The provisions of subdivision three of the original charter stipulating a specified cost of residences on the property therein mentioned, are hereby expressly abrogated except that the Board of Directors may hereafter make such stipulations as it sees fit, as to the cost of residences to be built on Boulevard Street." On October 30, 1906 the Improvement Company conveyed to M. Marx, Ed S. Hughes and Henry Sayles certain property. Said deed, insofar as it may be material here, is as follows:

It conveyed "All those certain Blocks O, J, I, and D and the West half of Blocks E, H, K, and N of the Henry Ward Survey No. 90, in the City of Abilene, Taylor County, Texas, and all spaces between the same containing forty-eight and one-half acres of land, the hereinafter described parts and parcels of land subject, however to the hereinafter mentioned conditions, limitations and trusts.

"All of the spaces left for roadways or streets between said blocks and part of blocks including Boulevard and North Hillside Circle and South Hillside Circle Streets, as well as the two acres belonging to Henry Sayles, and the two and one-half acres intended for the park, are conveyed in trust to the said Marx, Hughes and Sayles with the understanding that they shall hereafter make the proper conveyances thereof.

"In compliance with the resolution of the board of directors of said Abilene City Land and Improvement Company, dated the 30th day of October, 1906, it is hereby expressly stipulated that no part of said land fronting on Boulevard Street shall be sold by the grantees herein unless the purchaser from the grantees herein shall agree to erect thereon a residence to cost not less than twenty-five hundred dollars.

"And in further compliance with the amended charter of said Abilene City Land and Improvement Company, the stipulation of the specified cost of residences on all of said property, except that fronting on Boulevard Street is hereby expressly waived.

"Said Marx, Hughes and Sayles shall have the right at any time to subdivide said land hereby conveyed (except that held in trust as aforesaid) into lots, parcels of land, streets and alleys, and change such subdivisions as they see fit."

(The lots in controversy front on Boulevard Street or "Sayles Boulevard" and are out of the "restricted" portion of Boulevard Park Addition and are not out of said blocks nor out of the Highlands Addition.)

In May, 1910, by deed, which was recorded in Taylor County, Ed S. Hughes, Henry Sayles and Julia Marx (surviving wife and community survivor of M. Marx), together with John Sayles and wife and A. M. Robertson, partitioned among themselves all of Blocks O, J, I, and D and the West 1/2 of Blocks E, H, K, and N of said Herman Ward Survey. That deed recited that on October 30, 1906, M. Marx, Ed S. Hughes and Henry Sayles acquired from the Improvement Company by deed duly recorded in Taylor County Blocks O, J, I, and D and the West 1/2 of E, H, K, and N of said Ward Survey and all spaces in between the same. It recited that it was then desirable to recognize the individual interests of Henry Sayles, John Sayles, Ed S. Hughes and Julia Marx to certain portions of said property; to make provisions for streets and alleys and parks for the benefit of present and future owners of the property; to subdivide said land; to file a map of the subdivision for record; that there was attached to said partition deed a map entitled "Map of The Highlands" bearing signatures for identification of Henry Sayles, John Sayles, Ed S. Hughes and A. M. Robertson. Said map being duly recorded in the Deed Records of Taylor County. Said deed did not embrace Lots 1 and 2 in Block 5, Boulevard Park Addition to Abilene, and did not refer to the deed from Gunn to the Improvement Company. In December, 1915, Henry Sayles conveyed by a deed thereafter duly recorded in Taylor County an undivided one-half interest in Block B and the West 1/2 of Block C of said Ward Survey to Thomas Sayles. Henry Sayles died in June, 1916 and by the due probate of his will all of his interest in the said property was invested in his surviving wife, Hattie McAlpine Sayles. Thomas Sayles conveyed his undivided interest in Blocks B and C to Hattie McAlpine Sayles in February 1920. Said deed contained no mention of any restrictions or covenants referable to the use of Blocks B and C. In February 1920 Hattie McAlpine Sayles conveyed said Blocks B and C to Henry James et al. Said deed contained no restrictions or covenants referable to the use to which said blocks might be put. It did contain the following stipulation: "Provided, however, that the Boulevard and South Third Streets running through said property and Digby Avenue shall remain open for the use and benefit of the public." Neither the Improvement Company, Henry Sayles, Thomas Sayles, nor Hattie Sayles ever built any residence upon any part of the Blocks B and C. Henry James et al purchased said Blocks B and C as real estate investors and subdivided same into lots for the purpose of selling them to various parties and none of them built a residence on any part of said blocks, and none of them ever lived thereon. In March, 1920, Henry James et al. subdivided certain land, including Blocks B and C, as shown by a map of such subdivision recorded in the Deed Records of Taylor County, dedicating said subdivision as Boulevard Park Addition to Abilene. On March 17, 1920, by partition deed duly recorded in Taylor County, James et al. divided all of said property in Boulevard Park Addition among themselves. Lots 1 and 2 in Block 5 of the Boulevard...