Carmichael v. Hall

Summit Circuit Court

Carmichael v. Hall

33 Ohio C.C. Dec. 26, 18 Ohio C.C. (n.s.) 259

DecidedJanuary 15, 1909

StatusPublished

This text of 33 Ohio C.C. Dec. 26 (Carmichael v. Hall) is published on Counsel Stack Legal Research, covering Summit Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carmichael v. Hall, 33 Ohio C.C. Dec. 26, 18 Ohio C.C. (n.s.) 259 (Ohio Super. Ct. 1909).

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Opinion

HENRY, J.

Judgment below was entered upon demurrer sustained to the petition. The action was brought by the purchaser of the first lot sold in the defendants’ park allotment, to enjoin them from violating their uniform scheme of restrictions and limitations applying to said allotment as held out to plaintiff and made binding upon her by covenant in her deed at the time of her purchase, but not therein expressly covenanted to be binding also upon the defendants. The demurrer is founded upon the assumption that a writing is necessary to create in the grantee under such circumstances a reciprocal right, because such right is an interest or easement in the land under the statute of frauds. The truth is that plaintiff’s right need not rest in contract nor consist of an estate or easement in the remainder of the allotment. Her rights flow rather from the inequity of allowing the abandonment of a uniform scheme of restrictions after the-owners of an allotment have sold part of the lots on the faith of its enforcement as held out by them to the particular purchasers or the public at large. And even if such an equity in the grantee be regarded as an equitable estate in the allotment there is nothing in our statute of frauds requiring it to be evidenced [27]*27by a writing. We have more than once enjoined violations by allotment owners of their uniform schemes of restrictions under just these circumstances.

The judgment is reversed and the cause remanded with instructions to overrule the demurrer to the petition.

Winch and Marvin, JJ., concur.

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HENRY, J.

Judgment below was entered upon demurrer sustained to the petition. The action was brought by the purchaser of the first lot sold in the defendants’ park allotment, to enjoin them from violating their uniform scheme of restrictions and limitations applying to said allotment as held out to plaintiff and made binding upon her by covenant in her deed at the time of her purchase, but not therein expressly covenanted to be binding also upon the defendants. The demurrer is founded upon the assumption that a writing is necessary to create in the grantee under such circumstances a reciprocal right, because such right is an interest or easement in the land under the statute of frauds. The truth is that plaintiff’s right need not rest in contract nor consist of an estate or easement in the remainder of the allotment. Her rights flow rather from the inequity of allowing the abandonment of a uniform scheme of restrictions after the-owners of an allotment have sold part of the lots on the faith of its enforcement as held out by them to the particular purchasers or the public at large. And even if such an equity in the grantee be regarded as an equitable estate in the allotment there is nothing in our statute of frauds requiring it to be evidenced [27]*27by a writing. We have more than once enjoined violations by allotment owners of their uniform schemes of restrictions under just these circumstances.

The judgment is reversed and the cause remanded with instructions to overrule the demurrer to the petition.

Winch and Marvin, JJ., concur.

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Bluebook (online)

33 Ohio C.C. Dec. 26, 18 Ohio C.C. (n.s.) 259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carmichael-v-hall-ohcirctsummit-1909.