Smith v. Bowers, 4965
| Decision Date | 31 December 1970 |
| Docket Number | No. 4965,4965 |
| Citation | 463 S.W.2d 222 |
| Parties | Robert SMITH et al., Appellant, v. Sarah Laverne BOWERS, Appellee. |
| Court | Texas Court of Appeals |
Akin, Vial, Hamilton, Koch & Tubb, C. L. Mike Schmidt, Robert H. Frost, Dallas, for appellant.
Pemberton & Green, Bill Pemberton, Greenville, for appellee.
This is an appeal by plaintiffs Smith, et al. from a take nothing judgment against defendant Bowers, in a suit for permanent injunction to enjoin defendant from continuing the use of an alleged mobile home on lots 152 and 153 Shawnee Shores Estates, Hunt County.
Plaintiff Smith individually and as an officer of South Tawokoni Homeowners Association sued defendant Bowers alleging she had placed a mobile home upon lots 152 and 153 in Shawnee Shores Estates in direct violation of restrictions against same, of record in Volume 603, page 635 of the Deed Records of Hunt County. Plaintiffs sought injunction requiring defendant to remove such mobile home from the property.
Defendant answered that she took her land by general warranty deed, without knowledge actual or constructive of the asserted restrictions; and further denied that her home was a mobile home.
Trial was to the court without a jury which entered judgment denying plaintiffs' injunction.
The trial court filed Findings of Fact and Conclusions of Law, pertinent of which are summarized.
1) Defendant Bowers purchased lots 152 and 153 of Shawnee Shores Estate from W. V. Mitchell and wife on February 12, 1968, obtaining a warranty deed therefor.
2) W. V. Mitchell and wife purchased lots 152 and 153 of Shawnee Shores Estates from L. J. Rentz and wife on March 18, 1965, obtaining a Warranty Deed therefor, which stated the conveyance was made subject to the property restrictions of record in Vol. 603, p. 635 Deed Records of Hunt County.
3) The property restrictions in Vol. 603, p. 635 Deed Records Hunt County which prohibit mobile homes from being accepted in Shawnee Shores Estate were contained in defendant Bowers chain of title to lots 152 and 153 of Shawnee Shores Estate.
4) Motor vehicle title certificate #53899754 was issued defendant Bowers September 17, 1969 naming her as owner of the mobile home in question.
5) Defendant Bowers is in fact the owner of the mobile home which is subject of this suit.
6) Defendant Bowers moved her mobile home into Shawnee Shores Estate June 13, 1969.
1) The plat of Shawnee Shores Estate was not entitled to be recorded because it did not meet the requirements of Article 6626 and 6626a in not being executed or acknowledged by the owners; does not tie to an original survey; and was not approved by the Commissioner's Court.
2) The restrictions recorded in Vol. 603, p. 635 do not prohibit mobile homes in Shawnee Shores Estates because the restrictions do not refer to any plat that may be found.
3) Defendant Bowers did not have actual or constructive notice of the restrictions.
4) The home defendant moved onto the property was a mobile home at the time it was moved onto the property.
5) Such mobile home's characteristics were so changed that it became attached to the realty and was the homestead of defendant.
6) The defendant's home is not movable or portable in its present condition.
7) The home has a permanent foundation for year round living; is connected to utilities; and is on a foundation the construction of which is permanent.
Plaintiffs appeal on 4 points contending:
1) The trial court erred in holding defendant did not have constructive notice of the deed restrictions in Volume 603 p. 635 Deed Records of Hunt County, which restrictions were in defendant's chain of title prohibiting existence of mobile homes in Shawnee Shores Estate.
2) The trial court erred in holding defendant's dwelling does not constitute a 'mobile home' in violation of the restrictions.
3) The trial court erred in holding defendant's dwelling does not constitute a 'mobile home' because there is no evidence to support such holding.
4) The trial court erred in holding defendant's dwelling does not constitute a 'mobile home' because there is insufficient evidence to support such holding.
Contention 1 asserts defendant had constructive notice of the deed restrictions in Vol. 603, p. 635.
These restrictions provide that 'no mobile homes will be accepted' * * * 'in the residential area of Shawnee Shores as designated in the plat filed in the Courthouse of Hunt County, Greenville, Texas.' There is a plat in Vol. 400, p. 199 Deed Records of Hunt County which was not referred to by Volume and Page in the restrictions and which was not entitled to be recorded, as it did not meet the requirements of Articles 6626 and 6626a as found by the trial court's conclusion 1.
Defendant Bowers purchased her...
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