Thodos v. Shirk, 49048

• Decision Date: 11 December 1956
• Docket Number: No. 49048,49048
• Citation: 248 Iowa 172,79 N.W.2d 733
• Parties: Chris THODOS, Appellee, v. Paul B. SHIRK and E. Ethel Shirk, Appellants.
• Court: Iowa Supreme Court

Page 733

79 N.W.2d 733

248 Iowa 172

Chris THODOS, Appellee, v. Paul B. SHIRK and E. Ethel Shirk, Appellants.

No. 49048.

Supreme Court of Iowa.

Dec. 11, 1956.

Powers, Sloan, Woodcock & Marks, and Holliday, Miller, Myers & Stewart, Des Moines, for appellants.

Schweiker & Schweiker, Des Moines, for appellee.

LARSON, Justice.

Chris Thodos, plaintiff herein and owner of part of Lot 6, Suburban Farms, which is a part of a tract of land consisting of Lots 1 to 23 known as Suburban Farms, an Official Plat, Polk County, Iowa, and which with the exception of Lots 8, 13, 19, 20 and 21, was formerly owned and platted in 1929 by Suburban Farms, Incorporated, brought an action in equity asking that defendants Paul B. Shirk and E. Ethel Shirk be enjoined from using their property as a trailer court or for any commercial purpose in violation of the restrictive covenant in their deed. This restriction provided as follows:

'No building shall be placed or erected on said premises except for residence purposes, and until a residence costing at least $3,000.00 is placed or erected on said premises, no other building shall be allowed within 150 feet of the north line of said premises.'

It appears without dispute that since 1954 defendants have erected facilities and maintained a trailer court on their part of Lot 6 within 150 feet of the north line of said lot, and the trial court on October 27, 1955, did enjoin defendants from using the North 150 feet of Lot 6, Suburban Farms, for trailer court purposes and for any commercial use whatsoever. Defendants, as owners of Lot 5 and part of Lot 6, appeal.

It is defendants' contention that the restriction in their deed is ineffective and that plaintiff is entitled to no enforceable rights thereunder; that if any rights were acquired they have been abandoned, discharged by agreement or laches, or have been terminated by the substantial change of the neighborhood and the passage of a reasonable period of time. They further contend that if any one of these circumstances alone was insufficient, when taken together, they disclose a situation where equity should not enforce the restriction to the injury and damage of defendants, with no substantial benefit to plaintiff. Pertinent facts will appear in the opinion.

I. Courts of equity will enforce restrictive covenants in conveyances of real estate where the intention of the parties is clear in creating them and and restrictions are reasonable. Burgess v. Magarian, 214 Iowa 694, 243 N.W. 356; Johnson v. Robertson, 156 Iowa 64, 135 N.W. 585; Stevenson v. Spivey, 132 Va. 115, 110 S.E. 367, 21 A.L.R. 1276; Foos v. Engle, 295 Ky. 114, 174 S.W.2d 5, and cases cited therein; Velie v. Richardson, 126 Minn. 334, 148 N.W. 286; Deitrick v. Leadbetter, 175 Va. 170, 8 S.E.2d 276, 127 A.L.R. 849; American Law of Property, Vol. II, 1952 ed., pages 401, 402.

The first proposition advanced by the appellants and relied upon for reversal, is that the original restriction in the deed from the land company to the former owner was not shown to be one that ran with the land, but that it appeared as a personal covenant or contract between the parties conferring no rights upon plaintiff, a subsequent owner under deed from the land company. Appellee on the other hand contends the restriction in the deed from the land company was inserted in conformity with and as a part of the execution of a general plan for the development of a certain known and well defined property, and that it clearly appears this general scheme was intended for the benefit of all the lots in the territory originally owned by the company. Appellee says such covenants or restrictions are appurtenances which run with the land and bind the lots owned by the appellants even though by inadvertence subsequent deeds may fail to recite the restriction. Such was the case in plaintiff's deed, but he had actual notice thereof. Furthermore, constructive notice provided by the recording acts is sufficient notice.

While there seems to be some confusion as to when such benefits or burdens run with the land, the general rule is that if by a general scheme it was the intention to mutually benefit the lots sold by the land company, and this intention actuated both the grantors and the grantees, the legal proposition that such restriction or covenant runs with the land is well settled. This proposition is not seriously challenged by the appellants. It is rather appellants' contention that appellee has not borne his burden of establishing by satisfactory and sufficient evidence that the restrictions in the original deeds were inserted therein as a part of a uniform general plan. Upon consideration of the testimony and the exhibits including plats, the trial court held that it was a uniform general plan, and under the record we agree. While Lots 8, 13, 19, 20 and 21 had no restrictions, they were never owned by the subdivider and could not be considered a part of the grantor's general plan. With these exceptions the land company owned this tract of agricultural land from the west city limits of Des Moines westward along the south side of Hickman Avenue some 2,000 feet, and 650 feet deep. The lots along Hickman were numbered 1 to 17. Lot 12 became a street running north and south, with Lots 18, 19, 20, 21, 22 and 23, facing it from the west. From the record we learn all of the lots owned by the original grantor land company were sold and contained the same or similar restrictive covenants. The only difference in restrictions was that those facing the street, Lot 12, were restrained to 135 feet of the east lot line, and the value of the residence cut to $2,000. These differences were of no consequence and it must be held that the restrictions were uniform covering all eighteen lots in the subdivision.

It further appears from the record that purchasers bought the lots for residences relying upon the restriction, and this is particularly true of Mr. Sodawasser, Mary Zazas, and Mr. Murphy, who after a prior district court decision in 1937 involving the construction of this same restriction as to Lot 11, purchased three pieces thereof for the erection of private residences. While it is true appellee did not know of or rely upon this restriction when he purchased his lot, he complied therewith upon learning of it soon thereafter.

Appellants contend, however, that the restrictive terms used are ambiguous and vague and that the presumption relating to the free use of land overcomes any inference to the contrary, citing Peterson v. Gales, 191 Wis. 137, 210 N.W. 407, 47 A.L.R. 956; Melson v. Ormsby, 169 Iowa 522, 151 N.W. 817; 14 Am.Jur., page 621; Foos v. Engle, supra; Greer v. Bornstein, 246 Ky. 286, 54 S.W.2d 927. We find in most jurisdictions courts do not feel themselves bound by the terms of such restriction, but resort to proof of the surrounding circumstance to determine the true intent of the parties thereto when originally established. The result is most unfortunate for the bench and bar, for it has resulted in many cases on each side of the controversy, some of which are impossible to distinguish. We therefore hesitate to cite or discuss these many cases herein. Dean Pound considers such restrictions as servitudes upon the land similar at least to easements and profits, and in this view we see in general at least the benefits may be considered appurtenant to the land in the development scheme and therefore run with it. See 28 Va.L.Rev. 1067.

If we adopt this rule, and we think it good, the establishment of such restrictions must be along the lines familiar in the establishing of other appurtenances and easements. It is fair to say the doctrine of equitable servitude has now received wide acceptance in this country, although there is no unanimity of opinion among the cases as to whether equity is enforcing the promise as a contract or as an incorporated property interest in the burdened land. In the past we have leaned both ways. See Johnson v. Robertson and Burgess v. Magarian, both supra. We, nevertheless, prefer the theory which treats the covenant or agreement as creating an equitable property interest in the burdened land, and as an appurtenance to the benefited land. Johnson v. Robertson, supra, and cases therein cited. Also see Werner v. Graham, 181 Cal. 174, 183 P. 945; Childs v. Boston & Maine R. R., 213 Mass. 91, 99 N.E. 957, 48 L.R.A.,N.S., 378; Flynn v. New York, W. & B. R. Co., 218 N.Y. 140, 112 N.E. 913; Reno, The Enforcement of Equitable Servitudes in Land, 28 Va.L.Rev. 951, 1067; 26 C.J.S., Deeds, §§ 163, 164. Most equitable servitudes are created by covenants inserted by subdividers in the sale of lots in a restricted residential subdivision. These deeds, as in the case before us, are usually deeds poll, being signed only by the grantor, the subdivider. Courts uniformly hold that the acceptance of a deed poll by the grantee binds him as a promisor as much as if he had himself signed the deed. The acceptance of the deed amounts to an adoption of the signature of the grantor as that of the grantee also, so that the requirement of the Statute of Frauds as to signatures is considered satisfied.

Since the doctrine of equitable servitudes rests upon the theory of a servitude imposed upon the land, enforceable against all subsequent purchasers of the land who are charged with notice actual or constructive, the requirement of the special words such as 'and assigns' is unnecessary in the deed. The sole test for the running of the burden in equity, is the intention of the parties to impose a servitude upon the land as distinguished from a personal promise of the present owner. Therefore, if the covenant or agreement itself creates a property interest in the nature of an equitable incorporeal interest in the burdened land appurtenant to the benefited land, then priority of estate exists by virtue of the covenant or agreement itself. As already pointed out in enforcing equitable servitudes,...