Wilson Co. v. Gordon, (No. 7928.)

• Decision Date: 29 June 1920
• Docket Number: (No. 7928.)
• Citation: Wilson Co. v. Gordon, 224 S.W. 703 (Tex. App. 1920)
• Parties: WILSON CO. et al. v. GORDON et al.
• Court: Texas Court of Appeals

Page 703

224 S.W. 703

WILSON CO. et al. v.GORDON et al.

(No. 7928.)

Court of Civil Appeals of Texas. Galveston.

June 29, 1920.

Rehearing Denied October 7, 1920.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by Sol Z. Gordon and others against the Wilson Company and another.Judgment for plaintiffs, and defendants appeal.Affirmed.

Baker, Botts, Parker & Garwood and A. R. & W. P. Hamblen, all of Houston, for appellants.

Homer E. Stephenson and C. D. Ferguson, both of Houston, for appellees.

GRAVES, J.

The facts and issues in this cause material to a disposition of the appeal may be thus epitomized:

In 1907 Woodland Heights addition to the city of Houston, under a recorded map and plat thereof showing it to be divided into lots, blocks, and dedicated streets and alleys, pursuant to the adoption, publication, and advertisement by its then owners of a general plan for its development and sale as an exclusively residential district, was put upon the market.For 12 years the successive owners of the addition carried out, consistently observed, and sold lots only in consonance with this general plan until about 90 per cent. of the total lots in the entire addition had been so sold, publicly advertising it as a strictly residential restricted district, and representing to many different buyers at the time of and before the sales were made to them that it was such, and that the deeds to all other purchasers would contain restrictions of the same character as were inserted in their own, which in substance were as follows: On each street residences were to be built a certain distance from the property line, uniform minimum cost of construction was to prevail, all houses were to be built and used for residence purposes only, no saloon, livery stable, blacksmith shop, or any kind of trade or business whatsoever should be carried on or permitted upon the premises, nor should they be occupied by any person of African descent, and no vinous, spirituous, or malt liquors should ever be sold or exposed for sale thereon.

On January 15, 1919, however, the Wilson Company, successor in title to all prior owners of the unsold portions of the property, by deed of that date sold to E. G. Siadous lots 1, 2, and 3 in block 1 of the addition, in which as to lot 1 the restriction pertaining to the construction of a residence only was dispensed with, and that relating to liquors was changed to read as follows:

"(95) No vinous, spirituous or malt liquors shall ever be sold or exposed for sale on said premises, except for medicinal purposes."

The avowed purpose of Siadous in buying this property was to put up a drug store and apartment house on lot 1, which was perhaps the most prominent location in the entire addition; his intended use of it having been known to and discussed by him with the company before the sale.Its single conveyance of the three lots to him was in the form of a general warranty, but a lien was therein expressly reserved against them all to secure $2,900 of unpaid purchase money.

Thereupon Sol Z. Gordon and other owners of lots and homes within the addition brought this suit against Siadous and the Wilson Company, setting up the facts already recited, which they charged Siadous with having had full knowledge of before and at the time he so bought, averring their interest in the matter to have arisen from and to then exist by virtue of having themselves bought and paid a largely enhanced price as a result of and in reliance upon these facts and representations, and asking that Siadous be enjoined from erecting on any part of such property any other than a building for residence purposes, with such stables and outhouses as might be necessary for use in connection with a residence, and from carrying on or permitting upon the premises any kind of trade or business whatever.The closing part of the prayer was this:

"That upon final hearing hereof the rights, equities, and easements of petitioners in all of the said properties in the hands of defendants be established by decree of court, and that said defendants be perpetually enjoined from selling or conveying said properties or any portion thereof, except upon express agreement by the purchaser thereof to assume and abide by the restrictions heretofore assumed and imposed upon petitioners and the remainder of the property owners in said addition, and that they recover their costs and have such other and further relief, general and special, as they may be entitled to receive at law and in equity."

The Wilson Company answered with a general denial; specially denied that it had at any time represented to any of the plaintiffs or to any other lot owners in such addition that the deed to lot 1 in block 1 would contain restrictions identical with or similar to those contained in the deeds of the plaintiffs and other owners of property therein; also specially pleaded that at the time the addition was platted a small frame building had been erected upon lot 1, block 1, which for 10 or 12 years had been habitually and customarily used for business purposes exclusively, and never as a residence, having sometimes been used as a real estate office and at other times as a polling place, and still at other times as a place where a kindergarten was conducted; that the maps and other literature in circulation by the defendant the Wilson Company would sufficiently indicate that this particular lot had some sort of structure thereon, and that each and all of the plaintiffs had bought their property with the constructive knowledge, at least, that this lot was being used and would continue to be used for business purposes; that by reason of all of these facts, and by reason of the acquiesence by the plaintiffs in the use of the lot they were estopped to insist upon the observance of the restrictions with reference to it, and had waived any rights with regard thereto.The company further expressly disavowed any intention of selling any of the remaining lots in the addition with a waiver of the restrictions.

The defendant Siadous answered with a general denial, and specially pleaded that there had never been any restriction upon lot 1 in block 1, that the intention of the owners thereof had always been that there should ultimately be built thereon a drug store and apartment house, and further that, even if the defendant the Wilson Company and its predecessors in title had ever adopted and promulgated a plan whereby all of the lots in such addition would be used strictly for residential purposes, he had neither had actual nor constructive notice of such plan or intention, and that he bought lot 1 in block 1 in good faith and in ignorance of any such conditions or restrictions, being wholly ignorant of any representations that may have been made by the Wilson Company and its predecessors in title to the plaintiffs or other lot owners in the addition at the time they made their respective purchases of lots.He then substantially repeated his codefendant's plea of estoppel by reason of the alleged use of lot 1, block 1, for business purposes.

A temporary injunction was first granted, which remained in force until trial of the cause upon its merits before a jury upon special issues.These embodied inquiries upon substantially all the matters hereinbefore referred to, and on the jury's return of answers in accord with the contentions of the plaintiffs as to the facts about them the court entered final judgment in favor of some of them against Siadous restraining him from erecting the contemplated drug store, and in behalf of them all against the Wilson Company, enjoining it from in the future selling or conveying any property in the Woodland Heights addition without both expressly inserting in the deeds all the particular restrictions hereinbefore described and binding the grantees as purchasers to assume and abide thereby.

Both defendants appeal, making common cause in this court in attacking the judgment so rendered below.

They first insist that the separately presented requests for peremptory instructions in their favor should each have been granted by the trial court—the Wilson Company's because neither pleadings nor proof indicated that it intended or was threatening to sell other lots than those already deeded to Siadous, as to which conveyance the petition affirmatively showed no injunctive relief was sought, without inserting in the deeds the restrictions contended for; Siadous' on the ground of his alleged lack of prior knowledge, actual or constructive, of any restrictions against or any supposed verbal agreements of his vendor with other people touching the property he bought.

We do not think the position maintainable as to either appellant.The appellees set up and abundantly proved ab initio the entire course of conduct and dealings of the Wilson Company and its different predecessors in ownership toward the public generally and themselves in particular with reference to the establishment and preservation of the addition as forever being an exclusively residential one, as well as the mutual observance of that character for it between all these successive owners and their vendees for an unbroken period of 12 years; also the accomplished fact of the actual sale and deed to Siadous in violation of the general plan and character theretofore so impressed upon the property, which transaction was still incomplete, in that the prescribed building had not yet been put up and the absolute title to the lots had not then passed from the appellant company to Siadous because of the retaining of the vendor's lien in its favor to secure much the greater portion of the purchase money.After this much, with other facts and circumstances not at this point necessary of mention, had been developed, although its officers had denied that it intended in the future to sell any more of the lots without the restrictions, appellant company requested and the court...