*1 y. GREEN GERNER !.W.) (283 ! rulings relating <§=>108(2) to the construction 5.Covenants erec- —Not duplex buildings plication tion of four or five fif- the will is of the terms of building which not affect de- judgment teenth, complains as sirability petitioners’ held not whole, rulings. embracing Thus all those waiver of allow so duty specifying has evaded the adjacent petitioners’ erection of him, objectionable rulings which were property. duty and seeks to shift court Failure to erection of four or eking rulings purpose those for the duplex buildings1not in the blocks or on the viewing them. decline to assume We petitioners’ property street on which was sit responsibility. uated, apartment building facing an conclude, first, that, appellant’s other not to constitute under waiver building enjoining estop petitioners restrictions or first, second, third, assignments and fourth eight-family' apartment erection anof- error, properly the trial admitted adjoining property. ron pleadings Ros- Benavides, setti v. determinative of fro-m District Harris Coun- ques- law of the case in so far as will in ty ; Roy Campbell, Judge. F. construed; second, tion was un- assignments injunction by der the fourth fourteenth of in Suit for Gerner J. Charles error reversible error was committed others another. admitting temporary injunc- granting evidence the instruments offered From an order by appellee affirmatively purpose tion, appeal. respondents o_f himself, title in since such evidence Vinson, Elkins, Weems, Sweeton & of Hous- given disposition no effect in ton, appellants. here; third, and, the remain- Houston, Campbell, Myer Simmons, ing error, fifteenth, cannot appellees. considered, for the reasons stated. The below will he PLEASANTS, C. J. This suit rendered, reversed here far as title appellants restrain w'as affirma- erecting apartment building up them from tively decreed in all but in other re- .city near on lots in the of Houston spects affirmed, at the cost by appellees, within an addition owned city apart in said set part, Affirmed in reversed sold, rendered. the character of restrictions peti might therein, which the deprive alleges appellants of tion prepar erect the (No. 8922.)* et al. v. GERNER et al. ing to construct said addition. allegations petition of Civil of Texas. Galveston. The need March 1926. specifically stated, here as no of its April 22, 1926.) sufficiency by appellants is raised if the facts proven upon therein the trial stated show Injunction <@=>62(3). 1. appellants were un- Owners of in district restricted dertaking to erect comes within the restric- purposes may prevent deed to residence tions contained in the deeds under which by injunction. violations of title to their re- <@=>51(2) Deed, providing 2. Covenants spective premises. was sold for general answered demur- than one resi- rer, special exceptions, denial, general occupy it, dence held to erec- forbid waiver, special pleas estoppel and the substance eightifamily apartment. tion of fully which will 'more Deed, providing convey- hereinafter shown. ed for residence appeal is from an the court one residence should held, land, temporary injunction granting appellees to forbid erection of an eight-family apartment building. hearing application. facts were shown on the <@=>49. Covenants 3. hearing: Language in restrictive covenants in deed all own in Rose- given and cov- city according parties’ of Houston front- land enant enforced under- Myrtle standing originally ing and intent. known as what street, and is now known as the extension of <@=>152. Contracts 4. Montrose boulevard. given Words in an instrument are their or- Gerner and wife Charles J. commonly dinary accepted meaning in ar- addition, 9 and .appellee Roseland own and riving ties. par- understanding and intention of Eugene Dowman owns C. dnd Indexes and,KEY-NUMBEK. other oases see same <§=For 1926. *Writ 9-, June granted error *2 283 WESTERN REPORTER SOUTH 616 actually of, and 8 lot 12 the north half of lots & commenced work on foundation and Ratliff, to, eight building apartments owns or and R. R. contain block lot' proposed apartment flats, 10, part these of and block 46. which said or flats 9 11 ap- plaintiffs be built are and believe are to informed to sundry pellant per- occupy 6 and to and M. Oreen rented leased Joe is various sons. addition. The 47 said respective allege properties have erected their Plaintiffs also that construction occupied by consisting eight apartment building, of an apartments their attractive which are number, flats, or families. other erected for rental flagrant is deeds which each of a direct appellant Green de- M. violation the covenants and and the Joe- deed, lands, among respective raigned strictions contained in the and also title to their general plan in- the material to this the said addition. other restrictions not quiry, [1-4] restrictions: The evidence shows that contain the respec costly have erected on house, house, church school business “No tive will be made much saloon, place hospital, sanitarium, house, public materially depre desirable and ciated if livery stable, entertainment, resort or permitted to con are place hall, of business other dance on contemplated struct house or maintain- kind character shall conveyed, right herein on the ed them. The of the owners of thereof. viola in a restricted of sold for is “The herein by injunction well is tion settled, other residence than questioned by appellants. and is necessary with one residence cove- Their contention is that improvements shall purtenant and sold, deprive the nants in owner improve- and said the lots herein his should be use of free construed $6,000.” than cost not less shall ments maker that, construed, cov- the restrictive when so in this on no restriction is There appellants’ prohibit the enants in do not in the other apartment building of an construction testimony deeds, restriction deeds undertaking erect. kind are that contained other than that, theory is based cause. upon trial introduced appellants’ apartment building because the is Green testified: M. Joe purposes only, for residential and is but contemplate I house “The provision is obnoxious to the apartments. be four-room are “no deed'that than one bedroom, dining room, living room, have a necessary appurte- residence with stairs' kitchen,, Two down and closets. bath stairs, entrance, improvements right to the two down nant out oc- to the up entrance, are four stairs. There left cupy Appellants the lots herein sold.” cite you walk 'apartments If each floor. eases from other states which your hand above in the entrance contention, prefer but we to follow the line of your left is four and to the head language cases which to the in cove- duplicate ref- used the four. With is an exact nants of this kind the house exterior of which it is to the erence glance small for ordinarily windows there interpreted, at understood and on the front to match each bathrooms and back upholds and enforces the contract as it was sides, at what want know I would toy understood and intended there- reference angle that. With I answered before to. angle the other look we quote from some cases which up you stairs and could see give what we consider the fair and reason- small was' windows down stairs you my is, interpretation tell it was bathroom, could able answer kind: pur- house, that what rent built for Mayes Hale, an In the case of So. pose. determined have I Ela. Court of Florida had apartments. get I have esti- we would before them for consideration a figured amount the smallest I that. mated would “one residence” wherein an per get month.” $75 would be sought prevent" of an building. stating ment appellees’ petition, with allegations of say: case the court apartment, follows: to said reference allege the defendant Plaintiffs enjoin “A bill was Company, a Brown the Russell sep- of ‘an bouse or employed apartments, contracting sep- firm distinct arate and for 5 or 6 families,’ and distinct tenants or á Green, arate disregard M. the said Joe city lot covenanted be used residential ‘to .for covenants, restrictions, gener- aforesaid purposes only, and is plan, disregard rights and in * * * lot.’ erected on each plaintiffs, them, each of and of all is “If the erection of .similarly other lot owners said addition not a is to be of the covenant the lot violation situated, erect, have threatened to and have used tions should not be too lots to residences for the usual collective the intent of the -used ily fine the ing purposes, house, and erected horse, a We think counsel is the term ‘residence’ residence, use of as er the erection of an a W. Michigan, use of his which forbade prohibit house.” ‘a Giving to the words used in these restrictions dence. the word Roraback, or 33' horses. So residence dence, of says: one on the second. violated Am. Mass. dence, tinct can be ing,” under such restriction case of Powers v. confines the and. ing containing under one roof to be used for the erected or more families. “one must be separate . “While “Considered “The letter ‘a’ has some “The defendants’ “Counsel' for the defendants 2-family, We do not think that an dwelling distinguished let to 454, any building covenant that constructed for use as St. the case of Killian places ordinary commonly dwelling defines the says a be on each lot was *' * * regarded erections the erection of a single horse; Rep. covenants relative to put, residence or single residence, several in but 100 N. W. 4-family, ‘a residence’ lots to ‘residence.’ of a covenant house’ means of residence for rights and not to court, interpreted of the covenant in connection with the construing merely house to each lot” would be dition, such the erection on construction of Court from business or several parties to the word of residence as a “one residence” build- that it means a separate Radding, a use to which the only 393, holds that ‘a simply wrong. aor conveyances does not mean a residence,’ covenants, it does not mean team 391, for residence fixes clearly dwelling place one1residence means a house could not be A apartments designed Massachusetts, than “a apartment 33-family understood 33-family apartment in question families.” not 33 113 3ST.E. owner to Supreme significance horse strictly construed the covenant.' each separate Goodman, “dwelling” separate defendant’s buildings on the means one resi- This intended building restric- form, a restriction single first Mich. ** contends nature and therefore lot.’ when single restrict manufactur- duplex “one dwell- means one residence,” single apartment. residences. houses to Harris v. not ‘only floor and and that his deed. Court effect to is to be and dis- families of these dwelling context, wheth- a -before home, single *3 valid, fam deed resi- resi * * con (283 two his the the addition for N. -s. GERNER ! ;.w.) majority use lence to the cardinal ing, as that term used in the covenant con- given meaning not be construed as had access to the the evade eases pellants’ holds that tained in the states of on each by ments to be used for der stricting the this holding intention of the the words street so constructed that each of the furnish strument. waived their aof quoted ing, has been addition from ment houses on lots owned restrictive deed. dition had ed, ability conforming to the restriction valuable as cence acter, use in however, As The evidence shows that four [5] deeds should the construction of a conform to the covenant and there is six maker of árid building containing several other means of estopped we have before 'Appellants Supreme -and the addition. None the deeds dwellings lqt in rule of construction a of the states in which the appellant’s deed, of Gillis one were -in force and effect of supported adjudicated. used lost its arriving a appellant’s conveyed by holding also had been erected a dwelling restrictive covenant Illinois, to insist the owners of other residence or constructing duplex opinions intercommunication between Court of New appellees’ property by pleaded is others, for six states exclusive residential followed states, pleaded doors. v. was a affect the at the building containing prohibiting which contain the same by require appell-ant "Bailey, lots, the use of other lots said, New instrument lots had become from which we have owner, in building designed the sounder reason and all of construction that the blocks or on the that that But commonly accepted mere understanding without families, although by favor construed there is highest That executing by buildings York, number of dwelling deed is violated the covenant. in his deed erected on them in the ad Hampshire, or that of -in probably our courts. subterfuge and that and were in covenant, of the parts six tenants of the free N. appellant’s appellant’s Kentucky, doing think the providing courts purposes. a is situat- or desir- presence acquies H. the ad should, line of duplex apart-1 apart char were of a 149, vio- un ap re by in 283 SOUTH REPORTER .WESTERN pellant. We do not think the evidence rais- estoppel. es the issue of waiver FIRE ALSUP v. HAWKEYE SECURITIES following quotation Corpus (No. 3156.)* from 18 INS. CO. Juris, p. applicable to states the Texarkana. Civil of Texas. facts cáse: 7, 1926 Jan. permit- “But where violations have not been 27, 1926.) Jan. as to evidence an aban- ted to such extent pre- plan, grantee will not be donment Judges <&wkey;56Entry by special objecting yiolation to further vented from judge legally disqualified case held to sit objected previous fact that void. particularly others, such violations violations joyment where Entry judgment by judge, special who immediately affect en- was- in the reason interested own of his where attorney *4 case as an for compared were trivial those in character with void. complained of.” District Damar from Coun- remarks Blackburn, Judge. George ty; P. Michigan, Galan De Court of Hawkeye 378, aptly Suit the Securities Eire In Barak, N. W. v. apply Company against Alsup1. Judg surance M.G. case: facts of this the appeals. ment for and defendant other, and on other blocks “Violations Affirmed. require plaintiffs to run to court streets did to so, them, or, re- prevent to do for failure Birming- W. L. Willie and & Lattimore supine when violations other and nearer ham, main Paris, Clark, all of Clark restrictions threatened them with direct of the financial Dallas, for injury.” Senter, Edgar Dallas, Wright E. G. «Eubank, Paris, appellee. and Patrick & for what we have said follows Prom opinion af- the in our LEW, .application J. This is an for firmed, so ordered. and it been junction judg- to restrain the execution of a 24, 1924, ment rendered on November judicial district, district the Sixth Rehearing. On Motion for county. in Lamar was made original opinion that in our statement perpetual on final trial on the merits of the duplex or the none of judge findings case. The district prior district restricted law, part fact and conclusions of which are a this suit “were in record, institution of accepted by the facts found appellees’ on the street on which blocks or this court made a inaccurate, property is situated” in that opinion. the facts correct- shows that a four-room ly the evidence ment house held that was been erected in whatever, void no and of effect and he had the block which residences legal authority which is to so decide and deter- appellees are situated. three mine. house is behind specially The court found that there was block, appellees situated in this fronts trial of the cause vacation within the appearance has the of on a back article Rev. Stat. J1911; residence, private is not shown have in September was the cause transferred enjoyment by way 22, 1924, Sixty-Second judicial with the interfered from the dis- trict, rendered such ju- of their pending, where it to the Sixth district; desirable as resi- entry homes dicial valuable re- former prior Such dences. record in cause of prop- deeds to their covenant strictive actual transfer to the Sixth compared erty being judicial district; in character as trivial that on November complain, day term, special judge with that of the last cannot, judicial presiding failure Sixth “en- judgment” equity, principle tered sound of law or cause favor of pellant; special judge the said a waiver them of was “one be held attorneys asserting plaintiff’s estop of Hawkeye in his them case protect Insurance Securities Eire Com- pany.” damage appel- which will be caused challeng- There is no of error lants’ construction ing, supports, finding ing. formally duly considering special judge the motion After entered the hearing, pressed judgment, we adhere to conclusions ex- original opinion, in our and refuse reason of “as interested in the case at- plaintiff torney Any in his the motion. case.” other oases seesame and Indexes <g=»For KEY-NUMBER April jurisdiction 20, 1926. o£ error dismissed ior want oí *writ
Green v. Gerner
283 S.W. 615
Tex. App.1926Check TreatmentAI-generated responses must be verified and are not legal advice.