Traylor v. Holloway
| Decision Date | 14 June 1965 |
| Citation | 142 S.E.2d 521,206 Va. 257 |
| Court | Virginia Supreme Court |
| Parties | , 18 A.L.R.3d 844 Eloise Randolph TRAYLOR and Harry E. Traylor, Jr., Trustees, v. Benjamin D. HOLLOWAY and Joan B. Holloway. |
John W. Pearsall, Richmond (Richard H. C. Taylor, Simpkins, McCaul & Pearsall, Richmond, on the brief), for appellants.
Alexander H. Slaughter, Richmond (John S. Battle, Jr., Battle, Neal, Harris, Minor & Williams, Richmond, on the brief), for appellees.
Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.
Eloise Randolph Traylor and Harry E. Traylor, Jr., Trustees, referred to herein as complainants, filed their bill for injunction against Benjamin D. Holloway and Joan B. Holloway, defendants, to require them to remove from their premises a building which the complainants alleged violated a restrictive covenant in defendants' deed. The court below refused the injunction, dismissed the bill and the complainants have appealed.
The suit was heard on the bill, the answer of defendants, a stipulation of facts and issues, and the testimony of one witness heard ore tenus by the court, all of which presented the following case:
The complainants are trustees in a deed of trust by which there was conveyed to them a tract of 147.246 acres of land in Chesterfield county for the purposes set out therein, which include authority to subdivide the property into residential lots subject to such restrictions as they deemed advisable. Pursuant thereto the complainants proceeded to divide part of the tract into a subdivision called Traylor Estates, as shown on a map which was duly recorded; and by a declaration of restrictions duly executed and recorded on April 4, 1958, the lots in Section A of the subdivision were made subject to certain restrictions, designed to create a select residential area. Paragraphs 1 and 2 of said restrictions are set out in the margin. 1 Similar restrictive covenants have been placed on all of the other sections of Traylor Estates.
By deed dated March 16, 1959, duly recorded, the complainants conveyed Lot 4, Block C, Section A, to the defendants Holloway, who are husband and wife. The deed was expressly made 'subject to the restrictive covenants and conditions of 'Traylor Estates Section A," as stated above.
According to the stipulation of facts and issues, 'without any submission to the architectural committee, the defendants constructed on their lot a structure 12' X 12', of which approximately 8' X 12' is enclosed, which structure is used as a playhouse for the children of the defendants and their friends;' and the issue for decision is whether complainants have proved that the structure is a 'building' within the meaning of the restrictions, and whether the restrictions should be so construed as to require the removal of the structure. 2
The stipulation also contains the statement that the subdivision 'has been developed into a fine residential section.'
The only witness to testify was O. L. Hopkins, a real estate broker who developed the Traylor Estates and is agent for the sale of the lots. He testified as to his efforts to make this a high-class subdivision; that he drew up the restrictions with that in view and after careful study, and that he explained to each purchaser of a lot as to the restrictions and what they required. Pictures showing the kind and quality of the homes that had been built on the lots in Section A were introduced. Defendants' counsel conceded that the subdivision 'is very high quality.' Hopkins described the structure on the Holloway lot as 'just a small building with a little overhanging porch in front of it.' Pictures were presented showing the front, sides and rear of the structure. Hopkins testified that he had received objections to this particular house on this lot.
The court below was of opinion, as stated in its decree, 'that a reasonable and proper interpretation of the restrictive covenants here involved does not prohibit the erection and maintenance of the subject playhouse upon the rear lot of the defendants.'
From the evidence and the pictures it is quite clear that this structure is a building. It has four walls and a front porch, all under one roof. The entire structure, including the porch, is 12 feet by 12 feet. The four walls enclose a space 12 feet by 8 feet and the open porch extends four feet beyond the enclosed portion.
Defendants do not assert that the structure is not a building. They argue that it is not a building 'within the meaning of the restrictive covenants,' and that the meaning of the covenants should be determined by what the parties intended when they agreed that no building should be erected, and by 'the evil sought to be avoided.'
The parties are agreed that covenants restricting the free use of land are not favored and must be strictly construed. The burden is on the person who seeks to enforce such covenants to establish that the thing objected to is within their terms. Schwarzschild v. Welborne, 186 Va. 1052, 1058, 45 S.E.2d 152, 155; Jernigan v. Capps, 187 Va. 73, 78, 45 S.E.2d 886, 889, 175 A.L.R. 1182. But in the latter case we said:
'It is an elementary rule of construction that the purpose or intent of a written instrument must be determined from the language used in the light of the circumstances under which it was written. * * *' 187 Va. at 79, 45 S.E.2d at 889.
According to the evidence in the present case the circumstances were that the complainants proposed to make of the property a high-class subdivision where attractive homes would be built and attractive grounds maintained. To secure this result restrictions were prepared and made applicable to all lots, placed on record, referred to in each deed, and explained to each purchaser. These covenants included the provision that
'* * * No building shall be erected, altered, placed, or permitted to remain on any lot other than one detached single-family dwelling not to exceed two stories in height and a private garage for not more than two cars.'
They included the further provision that no building should be erected, placed, or altered on any lot until the construction plans and specifications and its location were approved by the architectural committee.
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