86 So. 2d 360 | Miss. | 1956
This case involves the question of whether a provision in a deed is sufficient to constitute a restrictive covenant limiting the use of the lot conveyed to residential purposes.
Appellants A. G. and Lewis Carter, devisees of A. J. Carter deceased, and five other owners of lots in the subdivision in question, brought this suit in the Chancery Court of Lauderdale County against appellee D. A. Pace. The bill sought to enjoin Pace from operating a garage on lot No. 7 in the A. J. Carter Subdivision, and
Pace first purchased from A. J. Carter Lot 6. The deed of this lot from Carter to him contained the following restriction: “It is further understood and agreed that the above described property is to be used primarily for residential purposes. No building shall be constructed on said property for commercial use.” The width of the lot was not sufficient to allow Pace to have an adequate area for a driveway and playground for his cMldren, so on September 5, 1947, A. J. Carter conveyed to Pace Lot 7, which is the lot immediately to the south of Pace’s Lot 6, upon which is situated his residence. It is this deed to Lot 7 which is involved in this case. It conveys to Pace the property describing it as Lot 7 as per map of said Subdivision as recorded. The deed then provides: “It is further understood and agreed that the above described property is to be used for residential purposes.”
Toward the rear of Lot 7 Pace completed in 1954 a large garage type building, 30 x 40 feet, which he developed into a commercial automobile and truck garage and “muffler shop”. He has a large sign on the front
The question is whether the provision in the deed of September 5, 1947, to Pace from Carter is an enforceable restrictive covenant, limiting the use of the property to “residential purposes” and excluding its use for a commercial garage. After hearing the evidence, the chancellor held that although A. J. Carter probably had in his mind the idea of making the subdivision a restricted residential one, “this court does not believe that the legal steps were taken that are necessary to so make it and to bind the purchasers of the lots or the subsequent purchasers of the lots in the use of their property for only residential purposes”. The trial court did not think that “the legal requirements to accomplish this” were carried out. However, the chancery court held that the operation of the place constituted a nuisance in fact, and it enjoined Pace from operating any other hours than those of between 8:00 A.M. and 6:00 P.M. on weekdays, and enjoined operations on Sunday. Appellants have taken a direct appeal from this decree, and Pace has taken a cross-appeal, contending that the evidence was not sufficient to support the finding of the chancellor that the operations constituted a nuisance in fact.
This Court has held that a restrictive covenant limiting the use of lots in a subdivision to residential purposes, and prohibiting its use for commercial purposes is reasonable, violates no public policy, although
In Magnolia Textiles v. Gillis, 206 Miss. 797, 41 So. 2d 6 (1949) it was held that a restrictive covenant prohibiting for 10 years use of the property for any type of textile industry was ambiguous, and that the chancellor was warranted, after hearing extrinsic evidence of the intention of the parties, in holding that this restriction did not prohibit its use for the manufacture of garments. Other discussions of restrictive covenants are found in 14 Am. Jur., Covenants, Secs. 206-207; 26 C. J. S., Deeds, Sec. 162; Anno. 19 A. L. R. 2d 1274 (1951).
We do not think that the covenant in the 1947 deed to Pace is ambiguous. The question is not before us of whether the restrictive covenant in question applies to an apartment house or other type of residential building. The issue here is whether the provision in the deed that the parties “agree” that the property “is to be used for residential purposes” has the effect of prohibiting its use for a commercial garage. We think that the plain meaning of the terms of the deed has that effect.
Restrictions placed by the grantor on the use of property conveyed will be enforced if the intent to create them is clear, and if they are not contrary either to law or public policy and are reasonable. 7 Thompson, Real Property (Perm. Ed. 1940), Sec. 3567. The general rule pertinent to the interpretation of restrictions upon the use of property is stated in Thompson, supra, Sec. 3569: “The rules governing the construction of covenants imposing restrictions on the use of realty are the same as those applicable to any contract or covenant, including the rule that, where there is no ambiguity in the language used, there is no room for construction and the plain meaning of the language governs. "When construction is necessary, the language used will be read in its ordinary sense, unless the context shows that it was used in a different sense, and the restriction will be construed in the light of the circumstances surrounding its formulation and imposition and with the idea of effectuating its object, purpose and intent. Restrictions are to be fairly and reasonably interpreted according to their apparent purpose. On the one hand
Section 3598 deals with “erection of garage as violative of restrictive covenants”. It is there said: “Where a deed contains a covenant that the premises shall be used for residence purposes only, and that the buildings to be erected thereon shall be confined to dwelling-houses, such covenant is violated by the erection thereon and maintenance of a garage; ...” Goater v. Ely, 80 N. J. Eq. 40, 82 Atl. 611; Hepburn v. Long, 146 App. Div. 527, 131 N. Y. Supp. 154; Gross v. Whitelaw, 20 Ohio Cir. Ct. (N.S.) 116.
In view of these rules of interpretation, and of the plain terms of the covenant, the chancery court was in error in holding that the covenant was insufficient to restrict the use of Lot 7 to residential purposes.
It has been said that in the absence of a reverter clause, a mere statement in a deed that land is to be used for a specified purpose is merely a declaration for the purpose of conveyance, and does not in any way limit the grant. 26 C. J. S. 508. However, this principle and the two cases cited to support it are not applicable to the restrictive covenant in the Pace deed. Frederic v. Merchants & Marine Bank, 200 Miss. 755, 28 So. 2d 843 (1947) involved primarily the question of whether a deed had been delivered. It was held that it had. It was further said that since the directors of the grantor-banlc in their resolution authorizing execution of the deed expressly provided that the deed should not contain a provision that the land should not be used for any commercial purpose other than tourist cottages, and where such agreement was allegedly made only by parol, the delivered deed, being without any such restriction, could not be the basis of a suit to enforce a reverter of the
In brief, the restrictive covenant in the deed represented an agreement and contract by the grantor and grantee that the property would be used for residential purposes, and appellee’s undisputed violation of that contractual agreement can be enjoined by appellants in this action. Hence the decree of the chancery court is reversed on the direct appeal, and judgment will be rendered here enjoining appellee from violating the restrictive covenant in the deed, and more particularly prohibiting him from operating a commercial garage and “muffler shop” on the property conveyed by the deed. Since the decree is reversed and judgment rendered here, the cross-appeal becomes moot.
Reversed and judgment rendered for appellants.