Thomson v. Dozier

• Decision Date: 28 May 1942
• Docket Number: No. 4195.,4195.
• Citation: Thomson v. Dozier, 168 S.W.2d 319 (Tex. App. 1942)
• Parties: THOMSON at al. v. DOZIER.
• Court: Texas Court of Appeals

168 S.W.2d 319

THOMSON at al. v.DOZIER.

No. 4195.

Court of Civil Appeals of Texas. El Paso.

May 28, 1942.

Rehearing Denied September 10, 1942.

Appeal from District Court, Travis County; J. D. Moore, Judge.

Action by Mrs. Winnie M. Dozier against R. M. Thomson and others to cancel a restrictive covenant in a deed, in which defendants filed a cross-action for reformation of the deed.Judgment for plaintiff, and defendants appeal.

Reversed and rendered.

James H. Hart, of Austin, of counsel, Hart & Brown, of Austin, for appellants.

Ike D. White and H. Grady Chandler, both of Austin (White, Taylor & Chandler, of Austin, of counsel), for appellee.

PRICE, Chief Justice.

This is an appeal from the judgment of one of the district courts exercising jurisdiction in Travis County.Mrs. Winnie M. Dozier, as plaintiff, sued R. M. Thomson and his two daughters to cancel and annul a restrictive covenant in a deed by Thomson and his now deceased wife to W. E. Dozier.The trial was before the court without a jury, judgment for the plaintiff, and denying defendants a reformation of the deed as prayed in their answer.This appeal was duly perfected from the judgment.

The parties will be here designated as they were in the district court.

No questions on the pleading are presented, and it is deemed unnecessary to state same other than in connection with the issues hereafter discussed.

Defendant Thomson in 1923 was occupying, with his wife, as a home Block 9, Division "E", in the City of Austin.This tract of land was square in shape; it had an eastern frontage on Rio Grande Street of 276 feet.The western boundary of the block was the east line of West Street; on the north and south it likewise abutted on streets.The residence was a large two-story brick and rock house situated somewhat nearer the north than the south end of the block and nearer to the west than to its east side; it faced east towards Rio Grande Street, the front steps were about 122 feet from the west line of Rio Grande Street.All of the block was used as a homestead, and none of the outbuildings thereon were nearer the east line of the block than the front of the residence.This homestead was the separate property of Mrs. Thomson.

In the latter part of 1923 W. E. Dozier requested Mr. and Mrs. Thomson to sell him the south 121½ feet of the block to the end that he might erect a home thereon.The negotiations culminated on the 19th day of January, 1924, when the south 121½ feet of the block were deeded to Mr. Dozier by Mr. and Mrs. Thomson.The consideration of the deed was $12,500, cash $5,000, and two notes in the sum of $3,750 each.This deed contained the following covenant: "The Grantee covenants and agrees that neither he nor his heirs or assigns, shall erect any residence or building upon any portion of the East end of the parcel of land herein conveyed and described, within 100-feet and 5-inches of the East boundary line of said tract; that is to say, no residence or building shall be erected upon the property herein conveyed which shall extend East of a line drawn parallel with the East boundary of said lot and distance 100-feet and 5-inches therefrom, it being understood, however, that the steps of any such residence or building may, if desired, extend East of such line.It is further agreed that any residence or building which may be erected upon said premises covering any portion of the East one-half of the lot herein conveyed shall front East.It is expressly understood, however, that the West one-half of the premises herein conveyed, — that is to say, the portion thereof fronting on the West Avenue and running East 138-feet, shall not be subject to any conditions or restrictions whatever; and it is further agreed that the restrictions and limitations mentioned in a codicil to the Will of Mrs. Mary M. Walker, are waived and are set aside and the restrictions and covenants hereinabove contained are made and established in lieu thereof."

The two notes described in the deed were paid off and the lien thereof released.

Mr. Dozier employed an architect to draw plans for a residence on this property.According to the plans drawn up the residence was in all respects to conform to the restrictions set forth in the deed aforesaid.He was unable, or did not desire, to erect the house as planned, and later erected a small residence on the unrestricted portion of the property.

Mr. Dozier died September 18, 1930, still owning this land and never having built on the eastern part of it.Mrs. Thomson died August 3, 1930.

Mr. and Mrs. Thomson, to the death of Mrs. Thomson, continued to occupy the premises as their home.Mr. Thomson, from the death of his wife, has continuously occupied same as a homestead.No buildings have been placed on the block nearer to Rio Grande Street than the front of the Thomson residence.

On July 10, 1940plaintiff filed this suit claiming that the restrictions in the deed are void, and said deed conveyed full legal title without reservation or restriction; that the restrictions are unreasonable; that the operative effect of the covenant terminated with the death of Mrs. Thomson; that such covenant terminated on the payment of the purchase money; that the covenant cast a cloud on her title, for which she sought removal and for injunction against the defendants with interfering with her unrestricted use and occupancy of the east part of the said land.

Defendants' answer was a general denial and a cross-action for the reformation of the deed if the covenant therein contained was other than a restrictive covenant running with the land.

Defendants predicate their appeal on four points.We shall discuss only two.

No. 1 is as follows: "As owners of all of BlockNo. 22, the Thomsons, in selling part of the block and retaining the balance, had the right, upon agreement with the purchaser, to impose upon the land sold the building restrictions which are stated in the deed."

No. 2: "The deed clearly discloses the intention of the parties that the covenants should run with the land and creates covenants which do run with the land."

The first point involves an assumption that the covenant in the deed runs with the land; the second is an assertion that the deed discloses that it was the intention that same run with the land.

Defendants' fifth proposition is as follows: "The restrictive building agreements contained in the deed which was accepted by Dozier are covenants running with the land, because they affect the use of the land conveyed to the grantee, and they pertain to, and benefit the use of, the land retained by the vendors."

A construction of the written covenant contained in the deed under which plaintiff claims determines this point.This construction to be in the light of the facts immediately surrounding the parties at the time of the execution of the deed.

Mrs. Thomson retained slightly more than half the block.Before the conveyance the entire block was a homestead.The evidence indicates that it was a rather commodious residence.This existing residence had been long occupied by Mr. and Mrs. Thomson as a homestead.To an extent its existence had an influence in determining the future use of the entire block.It fronted east on Rio Grande Street and was about 120 feet from the west line thereof.Any use of the south portion of the block that would interfere with the comfortable enjoyment of her residence would necessarily affect the value thereof.Considering the nature and probable value of the improvements thereon, it was probable that the retained property was destined for a long time to be used as a residence.

We have mentioned Mrs. Thomson solely so far.The fact that Mr. Thomson, the now owner of the property, has and had at all relevant times a homestead right in the retained property has not been overlooked.Even though the covenant was held to be a mere personal covenant, his homestead right might and perhaps would entitle him to enforce same.He had at all times the right to use and occupy same as a home.The covenant was in terms made with him.

But there is now complete title in the defendants — a title derived in part at least from the grantor of plaintiff's predecessor in title.If this be a lawful covenant appurtenant to the retained land, defendants have the right to enforce same.If they have the right to enforce same, plaintiff has not the right to have the servient estate relieved from its burden.The covenant as written in the grant beyond question purports to restrict the use of the property granted.Some purpose must be attributed to the insertion of the restriction.The only reasonable purpose that can be attributed is the effect that the restriction would have on the use and enjoyment of the retained property.

It appears, we think, that the owner or occupant of the retained property was the only one that had a legitimate and proper concern with restricting the use of the property granted.It was a reasonable assumption, we think, on the part of Mrs. Thomson that the retained property had and would have more value as a place of residence than for any other purpose.There was nothing unlawful in her seeking, within reasonable bounds, to protect this value — protect the comfortable enjoyment of the property retained by her.

Much has been said in plaintiff's brief as to the burden of proof in this case.The defendants are not seeking to...