Schwarzschild v. Welborne

• Decision Date: 24 November 1947
• Citation: 45 S.E.2d 152
• Parties: SCHWARZSCHILD et al. v. WELBORNE.
• Court: Virginia Supreme Court

45 S.E.2d 152

SCHWARZSCHILD et al.

v.WELBORNE.

Supreme Court of Appeals of Virginia.

Nov. 24, 1947.

Appeal from Law and Equity Court of City of Richmond; Willis D. Miller, Judge.

Suit by Rosalie H. Schwarzschild and others against Myrtle A. Welborne to enjoin alleged violation of a restrictive covenant in deed in defendant's chain of title. From a decree in favor of defendant, named complainant and others appeal.

Decree affirmed.

Before HUDGINS, C. J, and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN and STAPLES, JJ.

Gordon & Gordon, of Richmond, for appellants.

Charles E. Maurice, of Richmond, for appellee.

BUCHANAN, Justice.

The appellants are four of seven complainants who brought suit against the appellee, as defendant, to enjoin her from an alleged violation of a restrictive covenant in a deed in her title. The trial court refused to grant the injunction for the reason, as stated in a written opinion, that the defendant had not violated the covenant, and also, that under the facts and circumstances it would be inequitable to grant it.

No evidence was taken but the facts were agreed in two written stipulations, the first of which contains this paragraph:

"1. That the sole question to be determined in this cause is whether the defendant's use and occupancy of the premises No. 2708 Monument Avenue, Richmond, Virginia, constitute a violation of the terms of the restrictive covenants set forth in paragraph five of the bill of complaint, by which it is agreed the defendant is bound unless (a) the complainants are stopped by their conduct from enforcing the same or (b) there has been such a general change in the neighborhood as to render it inequitable to enforce the same."

Paragraph five of the bill of complaint, so referred to, alleges that the defendant acquired title to her property, No. 2708 Monument Avenue, in Richmond, by mesne conveyances from A. L. Straus, to whom it was conveyed by John P. Branch by deed dated February 5, 1912, which Straus signed and thereby agreed, for himself and his successors in title, to be bound by the covenants and restrictions copied in the margin¹, the essential features with which we are now concerned being the provisions that when the land is improved "there shall not be erected more than two (2) dwellings thereon, " and "such improvements shall be a dwelling or two dwellings."

It was further stipulated that since January 5, 1945, the defendant "has conducted the business of renting rooms in her house to others, as is fully set forth in paragraph seven of her answer. The defendant has in the past and since January 5, 1945, served meals to persons renting rooms in her house. She is not serving meals at present to such persons, but claims the right to do so in the future."

In paragraph seven of defendant's answer, so referred to, she states that she does not maintain a boarding house, in the common acceptance of the term, but "has a very select number of persons who maintain their residence and dwelling place with her and they are all of the very highest type as is indicated by the following names: * * *." Those named are a married couple and their son, two other married couples and two ladies who "hold responsible positions in the educational field."

She further states that she "does not accept overnight guests, nor furnish meals, and those residing at her home have come with the idea of making their stay permanent so long as their business permitted. None have been with your respondent for less than three months."

It appears that the original complainants and the defendant own the entire frontage on the north side of Monument avenue from Mulberry street on the east to the Boulevard on the west, with the defendant's property located about the center of the block. John P. Branch was formerly the owner of all the real estate on which the several dwellings are located, and all the owners derive their titles from him as common grantor.

Several years before the defendant purchased the property it was claimed that the dwelling house and improvements on the lot had been so placed as to encroach slightly on the agreed building lines and by a deed dated October 1, 1921, all of the then owners of the frontage on the block, including defendant's predecessor, consented to the encroachments, so far as the present improvements were concerned, on condition that no further violations or non-observances of the said building restrictions be made or permitted.

The defendant purchased her property in December, 1944, for $32,500. Her house is described as a large, three-story brick building containing twelve rooms and seven bathrooms, including a shower installed on the third floor by the defendant after she bought the property. Since the defendant took possession, there have been no changes in the outward appearance of the building. The rose garden, lawn and general outward appearance are well kept. The occupants of the building are quiet, orderly and well-behaved.

On January 5, 1945, the defendant obtained from the city a certificate of occupancy permitting said premises to be occupied as a boarding house, which is defined by the City Code to be "a dwelling other than a hotel where for compensation, meals, or lodging and meals, are provided for four or more persons."

On February 4, 1945, she obtained a license to operate said premises during 1945 as "a hotel" of twelve rooms and seven bathrooms. To obtain a telephone, under war conditions, it was necessary to apply as "a hotel, " which she did and her home is so classified in the telephone directory.

From January 5 to May 3, 1945, she inserted from time to time in the classified sections of the city newspapers this advertisement: "Monument Ave.--An ideal home for those away from the comforts of their own. Room with or without bath. Meals that satisfy. 4-3300."

In 1943 the area in which the defendant's property is located was rezoned by the city from highly restricted residential property to an "E Multiple Family Dwelling District, " to which change none of the complainants offered any objection or opposition. There are now numerous apartment buildings, boarding houses, rooming houses and various business activities in the neighborhood of this property, but only dwellings in this particular block.

After the hearing of the cause in the court below, Elsie Boyd Tucker and Sudie R. Wood, two of the original complainants, withdrew from the cause, and since July, 1945, Mrs. Tucker has been renting four rooms in her house to others, but no owner in the 2700 block other than Mrs. Tucker and defendant is taking in roomers or boarders.

The question presented by these facts is, as stated, whether the defendant's use and occupancy of her premises constitute a violation of the terms of the restrictive covenant. The defendant stipulates that she is bound by this covenant, unless the complainants are estopped, or there has been such a general change in the neighborhood as to render it inequitable to enforce the same. No estoppel has been shown. While there has been some change in the neighborhood, as the chancellor states in his opinion, we agree with his conclusion that "if this covenant be restrictive of the present use, it could not be said that the changed conditions destroy its purpose and object."

As we have seen, the language of the restrictive covenant is, "there shall not beerected more than two dwellings, " and "such improvements shall be a dwelling or two dwellings."

The defendant contends that this restriction applies to the kind of building to be erected and not to its use after it is erected. We do not think so. A covenant that prescribes the type of building to be erected necessarily limits the use that may be made of it after it is erected. A covenant to build only a dwelling would not be kept by building a dwelling and then using it as a grocery store or a funeral parlor. And so it is generally held. Powers v. Radding, 225 Mass. 110, 113 N.E. 782; Strauss v. Ginzberg, '218 Minn. 57, 15 N.W.2d 130, 155 A.L.R. 1000; 26 C.J.S, Deeds, § 164.

It is also the general rule that while courts of equity will enforce restrictive covenants where the intention of the parties is clear and the restrictions are reasonable, they are not favored, and the burden is on him who would enforce such covenants to establish that the activity objected to is within their terms. They are to be construed most strictly against the grantor and persons seeking to enforce them, and substantial doubt or ambiguity is to be resolved in favor of the free use of property and against restrictions. Stevenson v. Spivey, 132 Va. 115, 110 S.E. 367, 21 A.L.R. 1276; Noble v. Kisker, 134 Fla., 233, 183 So. 836, 26 C.J.S, Deeds, § 163; 14 Am.Jur, Covenants, etc, § 212, p. 621.

Of course "a thing may be forbidden by necessary implication as clearly and positively as by terms of express inhibition, " and "if it is apparent upon the whole that the instrument carries by definite and necessary implication a certain meaning, then the thing afforded, or denied, by that meaning may be said to be as clearly and definitely extended, or forbidden, as if the language used had been in positive and definite terms of affirmation or negation." Whitehurst v. Burgess, 130 Va. 572, 107 S.E. 630, 631.

There is no express inhibition in this covenant against the defendant's renting rooms in her house. Is it a necessary im plication from the words of the restriction? Is it clear and not doubtful that by limiting the building on the lot to a dwelling or two dwellings, it was intended that nobody should dwell in the dwelling except the owner and his family? If that had been intended, it would have been easy to say so, and it would not likely have been left to the uncertainty of inference.

A dwelling house, says Webster (New International Dictionary, 2d Ed.) is, "a house, or sometimes part of a house, occupied as a residence, in distinction from a store, office, or other building;" and a residence, says the same...