Elterich v. Leicht Real Estate Co.

| Va. | Jun 16, 1921

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The questions presented for our decision will be disposed of in their order as stated below:

[1] Is the building proposed to be erected an “apartment house” within the meaning of the sixth clause of the restrictions and conditions contained in the deed to the defendants, the appellants, and hence in violation thereof?

This question must be answered in the affirmative.

No authority precisely in point has been cited before us in argument.

[2] No authorities whatever have been cited in argument for the defendants, except South & W. R. Co. v. Mann, 108 Va. 557" court="Va." date_filed="1908-09-10" href="https://app.midpage.ai/document/south--western-railroad-v-mann-6811821?utm_source=webapp" opinion_id="6811821">108 Va. 557, 62 S. E. 354, and 8 R. C. L. sec. 104, p. 1051, to sustain the following familiar rule, namely: “A deed is construed most strongly against the grantor and in favor of the grantee. This rule has been called one of the most just and sound principles of the law because the grantor selects his own language. * * * If therefore, the deed can inure in different ways, the grantee, it is said, may take it in such way as will be most to his advantage.” This rule, however, has no application where, in the light of the surrounding circumstances, the meaning of the language of the deed is plain. Quod id certmn est quod cerium reddi potest.

For the plaintiff are cited the note in 45 L. R. A. (N. S.) 727 et seq.; Kitching v. Brown, 180 N.Y. 414" court="NY" date_filed="1905-02-21" href="https://app.midpage.ai/document/kitching-v--brown-3610394?utm_source=webapp" opinion_id="3610394">180 N. Y. 414, 73 N. E. 241, 70 L. R. A. 742; and some other cases which we need not here mention. Those authorities refer, among other things, to the following well understood general rules, which are not controverted in the argument before us for the defendants, namely:

[3] As said in Kitching v. Brown, supra, 180 N. Y., at p. 419, 73 N. E. at p. 242, 70 L. R. A. at p. 745: “When a word or phrase used in a covenant has more than one meaning, judicial knowledge of existing circumstances and conditions is indispensable to a. correct exposition of the law upon the subject, and to that end parol evidence is admissible.” (Citing cases.) “One of the familiar rules applicable to the interpretation of ambiguous covenants and agreements is to ascertain, as nearly as may be, the situation of the parties, their surroundings and circumstances, the occasion and the apparent object of their stipulations, and from all these sources to gather the meaning and intent of their language.” (Citing numerous cases.)

[4] As said in the note in 45 L. R. A. (N. S.) supra, at p. 727: “Regard must be had to the object which the covenant was designed to accomplish, and the language used is to be read in an ordinary or popular, and not in a legal and technical, sense.” (Citing numerous cases.)

[5] As said of covenants such as that in question before us, Idem. p. 728: “The language used must be given its obvious meaning and be construed in accordance with the intention of the parties, assuming that the restriction was put into the deed not simply for the benefit of the grantor, but for the benefit of every owner of property and of every resident on the street.” (Citing a Michigan case, Harris v. Roraback, 137 Mich., 292" court="Mich." date_filed="1904-07-16" href="https://app.midpage.ai/document/harris-v-roraback-7942677?utm_source=webapp" opinion_id="7942677">137 Mich., 292, 100 N. W. 391, 109 Am. St. Rep. 681.)

As said Idem. p. 728: “Particular words in such a covenant are to be given the meaning that was commonly given to them at the time the instrument containing the covenant was executed.” (Citing a New York case, White v. Collins Bldg. & Const. Co., 82 A.D. 1" court="N.Y. App. Div." date_filed="1903-07-01" href="https://app.midpage.ai/document/white-v-collins-building--construction-co-5193135?utm_source=webapp" opinion_id="5193135">82 App. Div. 1, 81 N. Y. Supp. 434.)

And as said, Idem. p. 727: “The primary rule of interpretation of such covenants is to gather the intention •of the parties from their words by reading, not simply a single clause of the agreement, but the entire context, and ■where the meaning is” (otherwise) “doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met,” (Citing a number of cases); “or in connection with the surrounding circumstances at the time the deed was executed.” (Citing cases.)

From reading the whole context of the deed in. question in the cause before us, in the light of the surrounding circumstances which appear from the statement preceding this opinion, it plainly appears .that the restriction with .respect to prohibition of the erection of apartment houses was in furtherance of the undertaking which the plaintiff: had entered into to develop Winona as a high class residential suburb of Norfolk city.

It is in substance admitted by the appellants that a three family apartment house would be in violation of the sixth clause of the restrictions contained in the deed. The proof shows that the building in question would be a two-family apartment house. We' are of opinion that a two-family apartment house would be, in kind, as much a violation of the object which the covenant in the deed with respect to apartment houses (the sixth clause aforesaid) was designed to accomplish as would a three-family apartment house.

Further: We think that when, the sixth clause aforesaid is read in the light of the circumstances disclosed by the testimony of the defendants themselves and by the other evidence in the cause, which is set forth or referred to in the statement preceding this opinion, it is plain that the words “apartment house” were used in such clause, not with the meaning that the defendants might erect a building such as was the one exceptional building then existing in Winona, known as the “Neff” residence, which was a two-family apartment house; but with the meaning that the defendants were not to erect such a house, although they would be permitted to erect a house of the same character as that of the president of the plaintiff company, and of all the other large dwelling houses then existing in Winona, namely, a house larger than necessary for one family, which might be occupied by more than one family, but which would not be constructed with any separate apartments suitable for the use of more than one family.

[6] One of the surrounding circumstances, shown by the preponderance of the evidence, as we view it, which perhaps should be specifically mentioned, is that in Winona, and also in Norfolk city, according to the ordinary and popular understanding at the time the deed in question was executed, such a building as that proposed to be erected by the defendants would have been considered “an apartment house.”

There is evidence for the defendants to the effect that in accordance with the building codes, referred to in the statement preceding this opinion, a building is not defined as an apartment house unless it is constructed or used for the separate occupancy of more than two families or households. But there is no evidence in the cause tending to show that the parties in entering into the covenant in question in the deed aforesaid contracted with reference to either of those codes. Indeed, by the very terms of the definition aforesaid in such codes, if the building was used by more than two families, although not constructed for the separate use of more than one family, the building would be an apartment house. That very thing was unquestionably admissible under the covenant in question, as expressly understood by both parties thereto. This of itself shows that the parties did not contract with reference to the definition contained in such codes. Further: An apartment house, as we understand it, within the definition of said codes, must, according to the requirements of such codes, have a certain construction with a view to safety, sanitation, etc. As said in Kitching v. Brown, supra, 180 N. Y. 414, 73 N. E. 241 (70 L. R. A. 742), of a definition of a “tenement house” in a statute requiring a certain construction of such houses with a view to safety, sanitation, etc.: “* * * yjg definition was coined for a limited and specific purpose. * * * it is obvious, therefore, that this statutory definition, in and of itself, throws no light upon the question before us” — which question was the proper interpretation of a covenant in a deed not to erect a “tenement building” on a certain lot.

[7] 2. Was the objection to the building proposed to be' erected by defendants, on the ground that it would be an' apartment house, waived by the plaintiff, by what occurred at the board of directors meeting on April 22nd, set forth .in the statement preceding this opinion?.

This question must be answered in the negative.

The evidence does indeed show that the plaintiff, at the directors’ meeting mentioned, agreed to waive any objection to the proposed building on account of its being constructed into two separate apartments; but, as we think is shown by the preponderance of the evidence, only upon Condition that the upstairs kitchen should not be constructed for use as a kitchen, and that the defendant, Mrs. Elterich, would personally, agree that the rooms on the second floor above the basement, designated on the original plans, “pantry,” “kitchen” and “dining room,” respectively, would not be used as such, but only as bed rooms. That is to say (in the language of Mr. Shelton, a witness for defendants), “It was understood that there was to be no kitchen,” and that (/the house would not be an apartment house in any sense of the word or used as an apartment house.” (Italics supplied.) This agreement on the part of Mrs. Elterich was to be evidenced by her signing in duplicate the altered copy of the .plans designating the rooms in question as “closet” and “bed rooms,” respectively, as set forth in the statement preceding this opinion. Mrs. Elterich refused to sign such plans and refused to enter into such an agreement, and both of the defendants insisted upon their right to proceed with the construction of the building without any actual alteration' of the original plan of construction, which included the construction of the upstairs kitchen in a way to make it suitable for use as a kitchen, and which, of course, included the necessary plumbing of a kitchen, etc. In view of such failure of defendants to comply with the condition aforesaid, the waiver on the part of the plaintiff predicated thereon, never came into effect.

The precise point of difference between the plaintiff and the defendants .on the subject under consideration is that defendants claim that no objection to the proposed construction of the building itself existed on the part of the plaintiff. That all the plaintiff demanded was that the plans for the second floor above the basement should not disclose on their face that rooms on that floor were to be constructed and used as a separate pantry, kitchen and dining room, respectively, from those on the floor below. That the plaintiff was entirely willing that such actual construction and use should proceed; whereas the plaintiff claims that its objection in the premises was a substantial objection, which went to the actual construction of the upstairs kitchen as a kitchen and to the use of the second floor as a separate apartment from that below. We are of opinion that the preponderance of the evidence sustains the claim of the plaintiff.

It may be that the defendants may have considered that by what occurred at the April 22 meeting of the board of directors, the plaintiff had in effect waived the aforesaid sixth covenant in the deed, and had stipulated in lieu thereof for a personal agreement of Mrs. Elterich which amounted substantially to nothing. It is not uncommon for a party to erroneously convince himself that he has secured an agreement which will operate wholly in his favor. There was room in the case before us for such a misunderstanding on the part of defendants as to the result of the April 22 director’s meeting. But we are satisfied that the'evidence shows that when the deed was made the minds of the parties met on the sixth covenant with the meaning which we have held above its words import; and while it may be true that their minds did not meet on the subsequent agreement, which is relied on by defendants to discharge the former covenant, that fact, instead of sustaining, is sufficient of itself to defeat such claim of the defendants, the fact being that the defendants did not perform the condition aforesaid as it was stipulated by the plaintiff.

The decree under review will be affirmed.

Affirmed.