130 Va. 572 | Va. | 1921
delivered the opinion of the court.
This appeal by E. M. Whitehurst is from a decree of the Circuit Court of Norfolk county, enjoining the said Whitehurst (defendant below) from building a store building on four lots of land on Atlantic boulevard, south of Hanover avenue, until the expiration of twenty-one years from October 10, 1910.
These lots are in Larchmont, a subdivision in Norfolk county originally owned by the Larchmont Realty Corporation, which had caused the same.to be platted into lots, blocks and streets. A portion of this area, to-wit, 840 lots, was conveyed to the Larchmont Investment Corporation by the Realty Corporation. The appellant, Whitehurst, derived his title by successive conveyances from the Larchmont Realty Corporation through the Larchmont Investment Corporation.
The Larchmont Realty Corporation, in conformity with a systematic and definite plan, laid off and platted Larchmont into building lots. The Larchmont Investment Corporation approved this plan, and confirmed and carried out the same. Many lots were sold by the Realty Corporation
The deed from the Investment Corporation to White contains all the restrictions included in its deed from the Realty Corporation, and is expressly made subject to the same, which are stated to “apply and pertain generally to the property of the Larchmont Investment Corporation, and particularly to the property therein conveyed, and which are to extend for a period of twenty-one years from October 10, 1910.” The conveyances from Stewart and wife to Bellamy, and from Bellamy and wife to Whitehurst, are also made expressly subject to the foregoing restrictions.
From the above recitals, it will clearly appear that Whitehurst was fully apprised of the restrictions imposed upon all building lots originally derived from the Larchmont Realty Company.
After his purchase of lots 23, 24, 25 and 26 in block nine of the plat of Larchmont, situate on the west side of Atlantic boulevard and south of Hanover avenue, Whitehurst arranged to erect four stores on the same, and proceeded to dig his foundations. Thereupon W. B. Burgess and many others, owners of lots in Larchmont, filed their bill of injunction against Whitehurst, alleging that all of the buildings in Larchmont, except churches and a public school building, were private residences; that there were no stores or other buildings used for commercial purposes within this area; that all of the owners of lots in Larchmont were observing the restrictions and conditions in the deeds to these lots; that in consequence thereof Larchmont was an ex
“That two adjoining lots will constitute a building site for one residence only, except on Surrey crescent and Atlantic boulevard, south of Hanover avenue, where four adjoining lots will constitute a building site for one residence only, and on Westmoreland and Buckingham avenues, where three adjoining lots will constitute a building site for one residence only.”
Later the complainants filed a supplemental bill, and the defendant answered both bills, admitting the allegations of the same, except such allegations and averments as set up the claim that the property in question could not be used for other than residential purposes.
Upon consideration of the bills, answer, general replication and exhibits, the trial court enjoined the defendant, Whitehurst, from erecting the store buildings complained of. From this decree the present appeal was allowed.
The sole question presented for determination in this case is the interpretation of restrictive provision number three, cited suprai. Appellant insists that the language used, to-wit, that on certain streets two adjoining lots will constitute a building site for one residence only, on other streets three adjoining lots will constitute a building site for one residence only, and on still other streets, four adjoining lots will constitute a building site for one residence only, does not prohibit the use of these lots for business purposes. Appellees maintain that by necessary implication the use of these lots for other than residential purposes is forbidden by the deed under which the appellant takes title.
Applying these principles to the provision that “four adjoining lots will constitute a building site for one residence only,” the appellant concludes that this language means “that no more than one residence shall be erected on a plot of land consisting of four lots:” Further, that “the provision is for the benefit and protection, of a person who desires to use his lots for residential purposes. It secures him light, air and space for his residence. But it does not inhibit him from using the land for other than residential purposes.”
“Every deed is supposed to express the intention of the parties, and however unusual the form may be, it is a primary and cardinal rule of construction, that éffect must be given to that intent whenever it is reasonably clear and free from doubt; and in ascertaining the purpose and object of the parties, all parts of the deed must be taken and considered together,.it being a rule of law too well settled to need any citation of authority, that in the construction of any instrument, it must be construed as a whole.”
Temple v. Wright, 94 Va. 338, 26 S. E. 844, cited in Culpeper National Bank v. Wrenn, 115 Va. 57, 78 S. E. 620.
“The primary rule for the interpretation of a covenant 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 doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met.” Clark v. Devoe, 124 N. Y. 120, 26 N. E. 275, 276, 21 Am. St. Rep. 652.
“Restrictions must be construed so as to make the intentions of the parties effective.” Hyman v. Tash (N. J. Ch.), 71 Atl. 742.
“The purpose to be achieved by the covenant should be kept in mind.” Godfrey v. Hampton, 148 Mo. App. 157, 127 S. W. 626.
*578 .“All courts profess to give effect to the plain intention of the parties, in imposing such restrictions, and should live up to their profession .in good faith instead of seeking ingenious subtleties of interpretation by which to evade such restrictions,” Sanders v. Dixon, 114 Mo. App. 229, 253, 89 S. W. 577, 584.
These covenants should also be considered with reference to.the situation of the property affected, and its present and prospective use.
.In.connection with the construction of a restrictive covenant, the Supreme Court of Michigan used the following language: “While there is authority for saying that in construing this language, we should resolve doubts in favor of the defendants, it is none the less our duty to give said language.its obvious meaning. (Italics supplied.)
“We are to construe the language in accordance with the intention of the parties to the deed. In construing it, we should not assume that the restriction was inserted solely for the benefit of the grantor. (Italics supplied.) The purpose of the restriction is not merely to benefit the grantor, but every owner of property, and every resident on the street. Such a restriction assures purchasers that property will be devoted in a specified manner to residence purposes, and has a tendency to increase its value.” Harris v. Roraback, 137 Mich. 292, 293, 100 N. W. 391, 109 Am. St. Rep. 681.
Restriction number five provides that no building, or portion of same, shall be erected within fifteen feet of a street. It is not usual, to say the least, to find business buildings at such a distance from the streets, or avenues, of a town. The guarantee of the corporations concerned, that shade trees will be planted on all streets and avenues, is also an indication that Larchmont was intended to constitute an exclusively residential section.
Provision number three substantially subdivides Larchmont into three areas, in the first area two adjoining lots constitute a building site for one residence only, in the second area three adjoining lots constitute a building site for one residence only, in the. third area four adjoining lots constitute a building site for one residence only. It is in the highest degree unlikely that the original owners of this property would have been at such pains to prescribe that one residence only should be built on two, three, or four, adjoining lots, as the case might be, and leave the purchaser free to erect on each of his lots any form of commercial building that his whim, or fancy, might suggest,
We have been cited to many cases in the opposing briefs of the appellant and the appellees; a few of these are considered to be precisely in point, and being in aid of the con-1 elusions reached will be briefly cited.
In McNeil v. Gary, 40 App. D. C. 397, 46 L. R. A. (N. S.) 1113, the restrictions provided that not more than one dwelling house should be erected on a lot; that no apartment house, or flat, should be erected thereon; that such building (i. e., the one dwelling house) should not be used for manuturing, mechanical or business purposes. It was contended that while this language forbade the use of a, dwelling for business or manufacturing purposes, it did .not prohibit the construction in the first instance of a building designed purely for such purposes. The owner of a lot sought to erect on.his lot a stable as such, for his drayage, express and plumbing business. The court held that the erection of a stable was in violation of the provisions, swpra. On page 402 of 40 App. D. C. on page 1116, 46 L. R. A. (N. S.) cited above, we find the following: “It seems to us that no one purchasing one of these lots, and accepting a deed con
This, too, is a conclusion derived by implication.
In Hyman v. Tash (N. J. Ch.), 71 Atl. Rep. 742, the restriction was as follows: “That no dwelling shall be erected on this lot, except those facing upon * * * Witherspoon street, and the front line of said dwelling house shall not be less than fifteen feet from said street, and said dwelling house shall be erected in the center of said lot hereby conveyed, and equidistant from the side line fences of the lot.” Construing this language, the court said: “A question raised in limine is whether the restriction is not directed solely against dwellings, in which case the building of stores, and the erection of buildings other than dwellings, would not be prohibited. This question, in my judgment, is ,easy of solution. The neighborhood is a residential section, and undoubtedly the heirs of the Murphy estate never contemplated the erection of business buildings on Witherspoon street. The photographs offered in evidence show that that idea has been acted upon by the building of cottages, by the parties to this suit, complainants and defendants, and by others owning property in the tract. To prohibit the building of a dwelling within fifteen feet of the street, and to permit a store or other building to be run out to the street, seems at a glance to be destructive of the idea that was originally entertained in imposing the. restriction, which idea has been carried out fully by all of the owners of lots.”
The conclusion reached, that Larchmont was designed as a purely residential section, and that the language used
We find no error in the decree complained of, and the same is affirmed.
Affirmed.