Zieben v. Krakower

• Decision Date: 04 May 1961
• Docket Number: No. 13513,13513
• Citation: 346 S.W.2d 401
• Parties: Herbert J. ZIEBEN, Appellant, v. Joseph KRAKOWER et al., Appellees.
• Court: Texas Court of Appeals

Page 401

346 S.W.2d 401

Herbert J. ZIEBEN, Appellant, v. Joseph KRAKOWER et al., Appellees.

No. 13513.

Court of Civil Appeals of Texas, Houston.

May 4, 1961.

Rehearing Denied May 25, 1961.

Melvin S. Cohn, Barrow, Bland & Rehmet, Sidney Farr, Houston, for appellant.

Martin & Black, John A. Black, Jr., Bellaire, for appellee.

BELL, Chief Justice.

This is an appeal from a judgment permanently enjoining appellant, so long as certain restrictions were in effect in Southwood Addition to the City of Houston, from building, attempting to build, renting, occupying or operating any multi-family or duplex building on the East 10 feet of Lot 24 and all of Lots 25 and 26 in Block 4 of Southwood Addition.

In 1930 restrictions were placed on Southwood Addition providing that no duplexes or multi-family residences could be built on any of the lots in Blocks 3 to 11, inclusive, or any lot on the south 1/2 of Blocks 1 and 2. The restrictions allowed two-story duplexes to be built on the lots on the north 1/2 of Blocks 1 and 2. The restrictions further forbid the erection of garages for temporary use and provided such should be built at the same time as the residence and should conform in every way to the restrictions. The restrictions were to be effective until January 1, 1955, but an extension of the restrictions for a period of 10 years from the expiration date if extended by the then owners of a majority of the square footage of the property in the Addition, if made within 5 years of the expiration date, was authorized.

The effect of the restrictions was to make the Addition one where only single family dwellings were permitted except on the lots on the north 1/2 of Blocks 1 and 2. It seems to be conceded that this excludes garage apartments to be used by other than members of the family.

In 1952 an extension agreement was executed extending the restrictions until January 1, 1965. Various attacks, which we will notice later, were made upon the validity of the agreement as made by the record in the trial court. The trial court held the agreement valid as a matter of law under the record before him.

The appellant, in September, 1956, purchased the East 10 feet of Lot 24 and all of Lots 25 and 26, Block 4. He began, sometime later, to convert the single family dwelling on the property to a multi-family dwelling and also to build additional structures in violation of the restrictions. This suit resulted. Appellant pled abandonment of the restrictions because of alleged violations by others and also waiver by the appellees.

There was a jury trial and the jury answered as follows:

1. At the time of the filing of this suit (February 19, 1957) the erection of multi-family dwellings was not so prevalent as to constitute an abandonment of the restrictions.

2. At the time suit was filed the Addition had not generally become one in which rooms and apartments were occupied by persons other than members of a single family.

3. Appellees had not waived the restrictions.

Appellant contends the court erred in holding the restrictions were validly extended. The attack is based on two contentions:

1. The evidence fails to show that the persons who signed the extension agreement were the owners of property at the time the extension agreement was signed.

2. There were two groups of persons who signed the agreement who were not shown to have ever been the owners of property in the addition. The first group is made up of persons where the deed into them ran to them in a Christian name followed by the surname but the extension agreement was signed by initials followed by the surname. In this group are also persons where the deed to persons was by initials followed by the surname but the extension agreement was signed by a Christian name followed by the surname. The second group is made up of those married women signing the extension agreement not by their Christian name but by the name of the husband with the prefix 'Mrs.' In some cases the deeds had been to the husband and the wife in her Christian name and in others the deeds had been to the husband alone, the deed not showing whether the man was married at the time of the deed into him.

There were other groups of persons signing whose right to sign was attacked in the trial court. However, the parties have agreed in many instances so that it is material for us to consider only the groups above mentioned. If appellant is correct as to either group, then the requisite amount of square footage is not present to validly extend the restrictions. If appellant is incorrect as to both groups, there is sufficient square footage even though appellant be correct in his attacks on various other groups not here specifically mentioned. In some of the unmentioned groups appellees have conceded appellant is correct and even where, as to other groups, appellees make no concession, the square footage represented by such groups would not destroy the validity of the extension agreement.

The first contention of appellant is that while the evidence shows that the persons, with some few exceptions not here material, who signed the extension agreement had been conveyed a lot or lots in the addition (it was so stipulated), there was no evidence that the conveyances were prior to the date the extension agreement was executed.

The extension agreement was filed for record with the County Clerk of Harris County May 21, 1952. It was recorded in the Deed Records in Vol. 2445, pp. 100-170. (Actually there were six separate instruments that make up the extension agreement and they are all included in the volume and pages stated). Every deed shown on Exhibit A of Plaintiff was recorded in the Deed Records in a volume with a lower number than Volume 2445. The deeds into the persons signing the extension agreement were, according to said Exhibit A, recorded at various places commencing with Vol. 830 and ending with Vol. 2436. The parties stipulated that 'each deed listed in Exhibit A of plaintiff's motion for summary judgment * * * conveyed to the person or persons listed as grantee * * * the lot or lots indicated by said Exhibit A.' Appellant says the stipulation does not, however, state that such conveyance took place prior to the extension agreement. Appellees counter that when the above quoted stipulation is considered with paragraph III of the stipulation it is shown that the conveyance was prior to the stipulation. Paragraph III reads as follows:

'Each lot set out in Exhibit 'A' of plaintiffs' Motion for Summary Judgment was the homestead of the owner or owners thereof on the particular date that the purported owner or owners of such lot, according to said Exhibit 'A', purportedly signed and acknowledged the renewal instruments described in paragraph IV of plaintiffs' Original Petition and recorded in Volume 2445, pages 100 to 170, inclusive, of the Deed Records of Harris County, Texas. Paragraph III of this stipulation does not apply to those lots listed on Exhibit 'A' with respect to which the facts are shown to be such that the laws of the State of Texas do not allow a homestead.'

We need not determine the correct interpretation of the two paragraphs of the stipulation standing alone, because we are of the view that when it was stipulated that 'each deed * * * listed on Exhibit A * * * conveyed to the person or persons listed as grantee opposite such deed on said Exhibit A, the lot or lots indicated on said Exhibit A' there was, when we consider also that Exhibit A showed each deed to have been recorded in a volume lower than the volume where the extension agreement was recorded, evidence showing that the lots were conveyed to the persons executing the agreement prior to the extension agreement.

Article 6595, V.A.T.S., 1925, enjoins upon the recorder (County Clerk) the duty to record every instrument filed with him, which is authorized to be recorded, in the order in which the instruments were deposited with him. It will be presumed,...