Green v. Gerner
289 S.W. 999
Tex. Comm'n App.
1927
Check Treatment
NICKELS, J.

This is a “building restriction” case, in which an order granting temporary injunctive relief against the construction of an apartment house was affirmed by the honorable Court of Civil Appeals (283 S. W. 615), and in which writ of error was granted upon assignments presenting that the deeds in question do not so operate, of their own force, as to preclude right to erect the building. We believe the restrictive language of the deed was properly interpreted by the honorable Court of Civil Appeals, but it seems to us an improper effect was assigned thereunto.

Judged by their own terms, each of the deeds in question is intimate to the grantor and grantee therein named, and the restrictive language evidences an agreement between those parties in respect to future use of the particular lot therein described. There is in the deeds no evidence of covenants, conditions subsequent, or agreements wth mutuality as between the various grantees, or as *1000between any grantee and the vendor as representative of any other grantee. The liberty which belonged to the parties enabled them to contract as they saw fit in relation to a lot then being conveyed, and for anght that appears in the language of the deed the grantor retained the liberty to forego and waive the restrictive covenant or condition stipulated by him. Hence the restrictions in the. deed under which plaintiffs in error hold do not operate so as to give the owners of other lots the right to object to and prevent erection of the building in question; for the general rule is that only the grantor or those having his rights may enforce such covenants or conditions.

In such a case owners of vicinal lots are not without rights, if properly circumstanced; but their rights must rest in something extrinsic the deeds. What conditions will justify the interposition of equitable power to redress those rights is sufficiently shown in Curlee v. Walker, 112 Tex. 40, 244 S. W. 497. And none of those conditions are manifested in the proof here. What is shown is this: (1) The common grantor executed a plat of the large tract and had the plat recorded. The plat, however, shows nothing, except that a certain tract of land is thereon marked off into blocks, lots, and streets and alleys. It. does not include explanatory or dedicatory language, and merely purports to be a subdivisional plat of “Roseland, a Subdivision in the Oity of Houston, Owned by H. P. Cohen.” (2) When Mr. Gerner “purchased his lot, he had a conversation with Mr. Cohen, the owner of the addition, as to the character of the addition; he relied on the general plat of the addition and the restrictions in his deed.” Mr. Downman “knew the character that Rose-land addition was” when he bought his lot; he “had looked at the addition.” Mr. Thai-sen “had a conversation with Mr. Cohen about the property,” and bought his lot through Babbitt, Cohen’s representative. Babbitt, a witness for defendants in error, said that “he handled the sale of lots in Roseland addition for Mr. Cohen, the owner of the addition; the general character of that addition is a residence addition; * * * he is familiar with all these lots sold in that additionthat “all the restrictions he has come across are just the same with reference to where the buildings were to be erected, and the kind of buildings to be erected, and their location with reference to the streets.” (3) Each of the deeds (i. e., those conveying the properties of the parties to the suit) contains the same restrictive language. (4) The deeds in evidence convey, in the aggregate, 11 lots, and the plat shows that a i>art of the “addition” is subdivided into 86 lots, and that a large part of it has not been subdivided into lots, and a large portion of the “addition” is still owned by Cohen. It results that there is not in the language of the deeds, or in that language as construed in the light of, or as supplemented by, “the surrounding circumstances,” so far disclosed an effect which make the restrictive covenants or conditions imposed by Cohen upon the lots now owned by Green operate for the “benefit of all the lands” and the various owners thereof, under the principles declared in Curlee v. Walker, supra.

The verified allegations present additional fact issues, and, in view of the trial necessary to final disposition of the case, we believe the district court did not abuse its discretion in preserving the status through, the action taken.

Accordingly we recommend that the judgment of the Court of Civil Appeals be affirmed.

CURETON, C. J.

Judgment of the Court of Civil Appeals affirmed, as recommended by the Commission of Appeals.