Virgin v. Garrett

• Decision Date: 18 June 1936
• Docket Number: 3 Div. 177
• Citation: 233 Ala. 34,169 So. 711
• Parties: VIRGIN et al. v. GARRETT.
• Court: Alabama Supreme Court

169 So. 711

233 Ala. 34

VIRGIN et al. v. GARRETT.

3 Div. 177

Supreme Court of Alabama

June 18, 1936

Rehearing Denied Oct. 8, 1936

Appeal from Circuit Court, Montgomery County; Eugene W. Carter Judge.

Bill in equity by Roy S. Garrett against Jennie W. Virgin, Ira H Virgin, and Pan American Petroleum Corporation, to enjoin erection of a filling station, storehouse or apartment house on property adjoining complainant's residence. From that feature of the decree granting injunction as to erection of filling station or storehouse, respondents Virgin appeal, and complainant cross-assigns error as to the feature of the decree denying injunction as to erection of apartment house.

Affirmed.

Jack Crenshaw, of Montgomery, for appellants.

Thos B. Hill, Jr., & Wm. Inge Hill and George T. Garrett, of Montgomery, for appellee.

FOSTER Justice.

The purpose of this suit is to enjoin the erection of a filling station or other structure, except a residence upon a lot in Montgomery which adjoins one owned by complainant. The property in question is situated in Cloverdale, and that of appellant, who was respondent to the bill, is on the northeast corner of the intersection of Cloverdale road (now called) and Fairview avenue.

It is not a part of the property involved in South Cloverdale lying south of Fairview avenue, and considered in Scheuer v. Britt, 218 Ala. 270, 118 So. 658.

Cloverdale, lying north of Fairview, was acquired by the Cloverdale Homes from the Cloverdale Company, a corporation, in 1908, to the extent that lots had not been sold. The Cloverdale Homes made changes, resurveys, and advertised the property, and sold lots for residential purposes. In the block in which the property here in question is situated, and that across the street from it, including also that here in question, except as will be noted, the deeds contained a restriction as follows: "Upon the conditions, however: (1) That the said aforegranted premises shall never be sold, leased or rented to any person not of white race; (2) That the property hereby conveyed shall be used only for residence purposes, and if more than one dwelling house is constructed thereon, they shall be so located as to leave a vacant space of at least fifty feet between the houses; (3) That no stable, servant's house, or other out-house shall be erected on said lot No. ____ within _______ feet of the ______ boundary line of said lot; and on the further condition that if any of the above conditions shall be broken by the grantee herein, or any person deriving title through him, the title to the said premises shall revert to and revest in the grantor herein, or its successors, and the said grantor, or its successor, may, upon such breach, re-enter and take possession of said lands, or recover the same by legal proceedings."

In that block the following lots were conveyed without restriction: East 80 feet of lot No. 1, the west 200 feet of which is owned by respondent, and lot No. 7. Across the street they were likewise conveyed with the same restrictions, except one lot, not improved. The deeds by which lots 1 and 2, here in question, were conveyed contained such restrictions.

Many other deeds in the tracts contained the same restrictions, and some did not, but they do not affect this property. The east 80 feet of lot No. 1 is in the extreme southeast corner of the subdivision, and was sold to be used for erecting a small residence, and to be used as a tearoom. It is now used as a residence. Extending east from it there is an Atlantic and Pacific store, police station and filling station, all on property not in the tract owned and developed as Cloverdale.

Fairview avenue is now a wide, paved boulevard, and across it from lot No. 1 is a filling station and further east is a cluster of business houses used as such.

By deed, dated September 19, 1924, Cloverdale Homes sold lot No. 1, or rather the west 200 feet of it to Williams, et al., and by deed dated September 20, 1924, it sold lot No. 2 to Judge M.S. Carmichael. The two transactions were negotiated concurrently, though the deeds may not have been simultaneously delivered. They both contain the restrictions which we have copied. The Williams grantees were related to Mrs. Carmichael, and purchased because of that fact. Both intended to build a home for their personal use. But neither did so, and both sold their lots, and by such conveyances complainant came to own lot No. 2, on which he has built a residence, and respondent part of lot No. 1, which is not improved, but on which she purposes to build a filling station or storehouse, unless restrained, and, if so, then an apartment house, unless also restrained.

The trial court enjoined the building of a filling station and store, but not an apartment house. Respondent appealed, and complainant has cross-assigned errors.

All the deeds, including those to the parties in this suit in respect to the property in question contained the restriction in the same language. Prior to the purchase by appellant of lot No. 1, Cloverdale Homes had executed and filed for record a release of all such restrictions, dated December 1, 1926.

With the exception of the former use of a bungalow residence on the east side of lot No. 1 as a tearoom, sold without restrictions, and now used as a residence, and also except a four room apartment residence on lot No. 9, in the same block, all the property in the subdivision in question, in the vicinity of block 27 is used either for private residences or churches. There are no business houses in it, so as to affect adversely the lots in question. The business center across Fairview avenue was constructed in another subdivision, and contrary to restrictions there prescribed, if we may refer to Scheuer v. Britt, supra, for such information.

In addition to the general release of restrictions in all deeds, above mentioned, Cloverdale Homes, also executed at various times releases in respect to other certain named lots. The grantees from Cloverdale Homes of lot No. 1 in question, have also released the restrictions in the deeds which they executed, including that to appellant.

The only question, therefore, is whether the restrictions in the deed which Cloverdale Homes executed, by which it conveyed the west 200 feet of lot No. 1, inured to the benefit of its grantee of lot No. 2, executed at approximately the same time, and whether, if so, it attached to the ownership of the lot passing to this appellee as a subsequent grantee. If it is a covenant or condition which attached for the benefit of lot No. 2, and ran with that lot, then it was out of the power of Cloverdale Homes to release that restriction or convey it to one with notice that it was appurtenant to lot No. 2, so as to affect the rights of its owner.

It is apparent that the inquiry involves two questions: (1) Did the restrictions attach as appurtenant to lot No. 2, and run with it? (2) Did appellant have notice of its existence as such appurtenance when she purchased part of lot No. 1? Many of the applicable principles are discussed in our case of Scheuer v. Britt, supra.

We need not consider whether the circumstances were such as to create a right in all purchasers of lots in the subdivision, since the circumstances of the purchase of lots 1 and 2, respectively, are so intimately associated as to show a relation which need not always exist to have that effect.

The question of law which exists in such cases is whether or not the grantor in the deed containing the restriction agreed expressly or impliedly that the restriction is for the benefit of the owner of other property in the subdivision whether it had been sold or not. Such a contract may be inferred from the circumstances and terms of the instrument, and need not be expressed either verbally or in writing. The test is said to be the intention of...