Weil v. Hill

• Decision Date: 10 June 1915
• Docket Number: 183
• Citation: 69 So. 438,193 Ala. 407
• Parties: WEIL v. HILL.
• Court: Alabama Supreme Court

69 So. 438

193 Ala. 407

WEIL v. HILL.

No. 183

Supreme Court of Alabama

June 10, 1915

Rehearing Denied June 30, 1915

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Bill by Isadore Weil against Eugene L. Hill. From a decree dismissing the bill for want of equity, the complainant appeals. Reversed and remanded.

Weil Stakely & Vardaman and Steiner, Crum & Weil, all of Montgomery, for appellant.

Hill Hill, Whiting & Stern and R.T. Rives, all of Montgomery, for appellee.

SAYRE J.

Appellee Hill, owns the lot, 50 by 165 feet, on the southwest corner of Perry street and Jeff Davis avenue, in the city of Montgomery. On the lot is a residence, which stands 47 1/2 feet from the line of Perry street, on which the property fronts. Appellee was preparing to move his house nearer to the Perry street line, when appellant, Weil, who owns and occupies the lot next south of appellant's lot, filed this bill to enjoin the operation.

There are two branches to appellee's title. On May 1, 1909, he took a warranty deed from Mrs. Winn, in which the property conveyed is described as fronting 50 feet on Perry and running back 165 feet on Jeff Davis. Ten days later he took from Sloane Young and his wife, Cora, a deed of all their right, title, and interest, "both in expectancy and in reversion," in and to the rear 35 feet of the same lot, which part Young had purchased from one Rugely, and to which, for convenience, we will refer as the Rugely lot. Prior to September 25, 1901, in pursuance of an understanding between Young and Josie W. Hubbard, who afterwards became Mrs. Winn, and in anticipation of the deed to be presently mentioned, the latter had moved her house on the lot she then owned back on a line with the house now occupied by appellant on the adjacent lot, and then on the last-mentioned date Young, his wife joining in the deed, on the recited consideration of $1 and "the covenants and agreements" contained in the deed, conveyed the Rugely lot to Josie W. Hubbard by a deed containing, after a description of the property and customary words of conveyance, the following clause or stipulation:

"But it is covenanted and agreed by the said Josie W. Hubbard, her heirs, legal representatives, and assignees, and it is made a covenant running with said land, that no house or other structure shall ever be erected on the lot immediately east of the lot hereby conveyed on the southwest corner of Perry street and Jeff Davis avenue, nearer or closer to the said Perry street than the house now standing on the said lot, the front of which is, to wit, forty-seven and one-half feet west of the west line of said Perry street, and a violation of this covenant shall immediately work a reversion to the grantors herein, their heirs and assignees, of the land hereby conveyed: Provided, however, that should the residence, as now occupied by us, be rebuilt, remodeled, moved, or in other respects be changed or altered, so as to place same or other permanent improvements on said lot nearer to said Perry street than now located, then this obligation shall be by such change in location of said house or buildings on said lot so modified as to require only that the house and other improvements on the lot of said Josie W. Hubbard shall maintain, with such changes or improvements as may be made upon the premises owned by us, the same relative position to the said Perry street as is now established."

This deed was recorded in July, 1906, thus putting appellee upon notice of it, and upon the quoted clause appellant bases his claim of right to the injunction sought. His theory is that the clause should be held effectual in equity by way of estoppel or implied covenant to impose upon the lot previously owned by Josie W. Hubbard the burden of a perpetual building restriction, a negative easement or servitude, appurtenant to Mrs. Young's adjacent lot, now owned by him, and binding upon any purchaser of the Hubbard lot having notice--this, though the instrument of conveyance containing the clause was not subscribed by the grantee and would fix a servitude on property not the subject of conveyance for the benefit of the property of a grantor whose interest in the property conveyed was nothing more than an inchoate right of dower.

The title by which appellant claims to have acceded to the right in question has two branches also. Cora Young and husband mortgaged the lot to the Travelers' Insurance Company on June 27, 1899. It will be observed that this was before the execution of the deed containing the clause. This mortgage was foreclosed on April 5, 1906, and appellant became the purchaser and received a deed from the person executing the power. This title is stated in the bill, but we do not consider that it affects the question under consideration. In the meantime--that is, on December 28, 1901--Cora and Sloane Young had conveyed the lot to J.H. Clisby, "together with all improvements and appurtenances thereunto belonging." In 1908 Clisby conveyed the lot to Weil, describing it by metes and bounds, and to this description adding words and figures which, with slight changes to avoid confusion, may be quoted as follows:

"Being the same property described in the mortgage of Cora Young and Sloane Young, her husband, to the Travelers' Insurance Company, date June 27, 1899, recorded in Mortgage Book 160, page 272, in the office of the judge of probate of Montgomery county, Ala., except one piece thereof heretofore released therefrom as described in Deed Book 45, page 307, with an alleyway ten feet wide running into said property from the south side of Jeff Davis avenue."

There was no other mention of appurtenances.

It was held in the court below on these facts that appellant's case was devoid of equity, and from the decree dismissing his bill this appeal has been taken.

In determining the intention expressed by the deed of September 25, 1901, we must look to the terms of the deed itself, and then, if there be any doubt, to the relation between the properties and the circumstances of the parties at the time so far as disclosed by the bill, to the end that good sense and sound equity may be applied in the case. Appellant assumed, of course, the burden of stating facts that would show the intent to create a right in the nature of an easement over the land of the grantee, that the intent had been so expressed as to become binding on land, and his accession to the right; but, the right appearing, the court will not presume that it was intended to be in gross, or personal to the grantor, if it can fairly be construed as appurtenant to his land; and one test, approved by experience and common sense, is that the restriction would naturally operate to enhance the value of the grantor's adjacent property, whether retained by them or conveyed to another. "If this be so, it is a strong circumstance to indicate that the restriction was not intended for the mere personal benefit of the grantor, but as a permanent servitude beneficial to the owner of the land, whoever he may be, and appendant to the premises." McMahon v Williams, 79 Ala. 289. And, besides, in this case, from the language of the clause itself, considered apart from the stipulation for a "reversion," it is apparent that the parties intended that the advantage contracted for should be permanent and appurtenant to the grantors' adjacent...