Signaigo v. Begun

• Decision Date: 20 March 1926
• Docket Number: No. 20.,20.
• Citation: 234 Mich. 246,207 N.W. 799
• Parties: SIGNAIGO et al. v. BEGUN.
• Court: Michigan Supreme Court

234 Mich. 246

207 N.W. 799

SIGNAIGO et al.

v.BEGUN.

No. 20.

Supreme Court of Michigan.

March 20, 1926.

Appeal from Circuit Court, Wayne County, in Chancery; Harry J. Dingeman, Judge.

Suit by Francis E. Signaigo and others against Alex Begun. From a decree granting plaintiffs partial relief, both parties appeal. Decree set aside, and another entered for plaintiffs.

Plaintiffs, 19 in number, owners of lots on Hill avenue in Hamilton Park subdivision in Highland Park, seek by this bill to restrain defendant from erecting an apartment building with stores on one of the 6 remaining unoccupied lots on that street; the remaining 74 lots on the street being occupied by single dwellings worth from $10,000 up, and the street being up to this time a high-grade residential one. The subdivision of which these lots form a part was originally put on the market by the Michelson Land & Home Company about 1912. The form of contract originally used by the company contained some general and indefinite restrictions. Later a form was used with more definite restrictions. Deeds to 61 lots contain the following restrictions:

‘No building shall be erected upon the premises above described within fifteen feet of the front lot line. No manufacturing, liquor, or other business shall be conducted upon said premises; nor shall any dwelling costing less than fifteen hundred ($1,500.00) dollars be erected thereon. Said premises are conveyed upon the express condition that they shall not be occupied by a colored person or persons.’

Deeds to 18 of the lots contain the following restrictions:

‘No building shall be erected upon the premises above described within fifteen feet of the front lot line. No manufacturing or liquor business shall be conducted upon said premises; nor shall any dwelling costing less than fifteen hundred ($1,500.00) dollars be erected thereon. Said premises are conveyed upon the express condition that they shall not be occupied by a colored person or persons.’

The remaining lot, the one here involved, contains the following restriction:

‘It is mutually agreed that no building shall be erected on this property within fifteen feet of the front line, and no liquor business shall be conducted on the premises; nor shall the property be sold to or occupied by a colored person. It is mutually agreed that no building shall be erected on this property costing less than fifteen hundred ($1,500.00) dollars except that of a temporary building, which shall be placed at least thirty feet from the front lot line.’

It should be stated that the deed to this lot was not executed until June 25, 1924, and that the contract for its purchase was not entered into by defendant's predecessor in title until after the sale of many of the other lots on the street. From a decree granting plaintiffs partial relief both parties appeal.

Argued before BIRD, C. J., and SHARPE, SNOW, STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ. Murice Sugar, of Detroit, for plaintiffs.

Wm. Henry Gallagher, of Detroit, for defendant.

FELLOWS, J. (after stating the facts as above).

Upon 74 of the 80 lots single dwellings have been erected of substantial character. Some of these are not exactly on the building line; some are back of it, and some are in front. There are some of the second stories which also project slightly beyond the building line; but these slight encroachments measuring at most a few inches, and in one case but .24 of an inch, are too inconsequential to merit discussion. The plaintiffs are not estopped by them from protesting against the erection in their neighborhood of an apartment house with 19 apartments and having stores on the ground floor.

There is some force in plaintiffs' contention that the word ‘building’ found in 79 of the deeds is somewhat modified and restricted by the later use of the term ‘dwelling’ in the restrictions (De Galan v. Barak, 193 N. W. 812, 223 Mich. 378;Killian v. Goodman, 201 N. W. 454, 229 Mich. 393;Schadt v. Brill, 139 N. W. 878, 173 Mich. 647,45 L. R. A. [N. S.] 726), but we shall not dispose of the case on this question, as we are convinced upon this record that there was a common plan from the inception down to the present time carried out by every one of the owners of the 74 occupied lots for a highclass residential district of single dwellings, and that defendant had notice thereof.

Mr. Michelson, of the Michigan Land & Home Company, was deceased at the time of the hearing of this case. Defendant, however, called as a witness in his behalf the former bookkeeper of the company, who gave some testimony thought to be favorable to the defendant; but upon cross-examination he admitted that--

‘It was originally intended to restrict the subdivision to residence purposes and dwellings other than Hamilton. The agents were instructed to tell purchasers that the property was restricted that way.’

And all of the home owners who testified on the subject, and there were a number of them, gave testimony tending to show that they were induced to purchase lots, and to erect their...