Womack v. Dean, 6732

• Decision Date: 01 April 1954
• Docket Number: No. 6732,6732
• Citation: 266 S.W.2d 540
• Parties: WOMACK v. DEAN et al.
• Court: Texas Court of Appeals

Page 540

266 S.W.2d 540

WOMACK v. DEAN et al.

No. 6732.

Court of Civil Appeals of Texas, Texarkana.

April 1, 1954.

Hardy p Clapp, Tyler, for appellant.

Lawrence & Lawrence, F. Lee Lawrence, Tyler, for appellees.

REUBEN A. HALL, Chief Justice.

This action was instituted by appellees and others similarly situated as a class against appellant W. L. Womack in the District Court of Smith County, for an injunction to restrain appellant from 'selling any part of said lots 131, 132 and 133 without stipulating in the conveyance thereof that the property was sold subject to the conditions as recited in the deed of said 23.23 acre tract. * * *' Appellees alleged that the land comprising Highland Park Subdivision was dedicated and set apart as a subdivision to the City of Tyler, with certain restrictions, the third restriction being that no dwelling house shall be erected on less than one acre of ground and that the same shall cost not less than $3500.

Trial was to the court without a jury and resulted in judgment for appellees, restraining and enjoining appellant, pending trial of the case on its merits, from selling lots 131, 132 and 133 of the Highland Park Subdivision without restricting the sale thereof to any purchaser by the following restrictions and conditions: 'That no dwelling house shall be erected on less than one acre of ground and that same shall cost not less than $3,500.00.'

Appellant's point one is: 'The court erred in its findings of fact and conclusions of law in finding that at the time of the filing of the lawsuit and of the temporary injunction hearing it was understood by the owners of the land in Highland Park Addition to the City of Tyler, Texas, that a general scheme existed for the building of houses in such addition whereby no dwelling house should be erected on less than one acre of ground, and that the same should cost not less than Three Thousand Five Hundred Dollars ($3,500.00).'

On October 25, 1935, Walter Leonard and wife, Zora Leonard, dedicated and filed for record with the County Clerk of Smith County a map or plat showing subdivision of 105 acres of land, a part of the James L. Dickey Survey, said plat showing that the land was divided into lots and streets. On June 16, 1936, they executed and delivered to Earl G. Bateman and wife a part of said Highland Park Subdivision out of the Dickey Survey and being a 23.23 acre tract described by metes and bounds, a part of the 105 acres dedicated by them as Highland Park Subdivision to the City of Tyler. In said deed were three conditions, the third of which reads: 'That no dwelling house shall be erected on less than one acre of ground and that same shall cost not less than $3500.00.' Appellant's lot is part of the Highland Park Subdivision outside of the 23.23 acre Bateman tract. It is undisputed that in the deed under which appellant holds that there is no restriction as to the size of the lots upon which residences may be built or the minimum price of the residences to be located on them. Fifteen deeds were introduced in the record to different lots in this addition and only three contained the restrictious set out above. However, there is substantial evidence showing it was generally understood that there were such restrictions in the original grant by Leonard and wife, as well as the grant from Leonard and wife to Bateman. There is also evidence in the record that before appellant purchased his lots he had heard of these restrictions. In fact his attorney had received a letter from Mrs. Tyler, stating: 'As I remember, there is a building restriction put of record. You might look that up to see it it will fit in with your plans.' Womack testified under examination by the court that he was told by appellees that the land in the Highland Park Subdivision was restricted and that he received that information before he purchased the...