Home/Court of Appeals of Texas/Keith v. Seymour

Keith v. Seymour

335 S.W.2d 862, 1960 Tex. App. LEXIS 2245
CourtCourt of Appeals of Texas
DecidedMay 19, 1960
Docket13502
StatusPublished
Cited by12 cases

This text of 335 S.W.2d 862 (Keith v. Seymour) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keith v. Seymour, 335 S.W.2d 862, 1960 Tex. App. LEXIS 2245 (Tex. Ct. App. 1960).

Opinion

WERLEIN, Justice.

This suit was brought by appellees, John D. Seymour, and others, individually and as a class action for the use and benefit of property owners in Live Oaks Addition, against appellants, Donald McDade Keith and wife, to enjoin them from using or leasing property owned by them described *864 as Lot 45 and a Part of Lot 44 in said Addition, for business, trade or professional purposes or for any purpose in violation of the restrictions allegedly applicable to lots in said Addition.

Appellants in defense of such action pleaded that such restrictions had not been imposed upon their property, that no general plan or scheme of restrictive covenants had been adopted or effectuated, that the alleged resolution setting out the restrictions was insufficient to give purchasers either actual or constructive notice, failed to satisfy the Statute of Frauds, Article 3995, Vernon’s Ann. Texas Civ. St., as to the description of the land, and expressly reserved the right in the grantor to impose or refrain from imposing the restrictions on any lot, thus manifesting a lack of intent to adopt a general plan or scheme of restrictions.

The case was tried without a jury. From the judgment of the court granting a permanent injunction and denying appellants’ cross-action for a declaratory judgment declaring that appellants’ property was not subject to the restrictions in question, appellants have perfected their appeal.

The parties have stipulated at length as to conveyances of lots in the Addition with respect to whether they were conveyed with or without reference to restrictions. Among other things, it is stipulated that on April 1, 1929, the president and secretary of Live Oaks, Inc., the owner of Lot 10 of Large Lot 48 of the Obedience Smith Survey in Harris County, Texas, with the exception of two 1-acre tracts, specifically described, filed a plat of “Liveoaks” in the map records of Harris County, Texas, and on May 17, 1929 filed an Amended Plat in such map records, Vol. 10, p. 8, and that the Subdivision known as “Liveoaks” comprises a part of the land above described. On December 17, 1929, by reference to said plat in Vol. 10, p. 8, Live Oaks, Inc. conveyed Lot 17 in said Addition, imposing restrictive covenants applicable to such lot.

Thereafter, on December 30, 1929, and prior to conveying any other lot in Live-oaks, a resolution of Live Oaks, Inc., owner of such property, was filed in the deed records of Harris County (Vol. 823, p. 584), setting out the restrictions involved herein. On January 1, 1930, Live Oaks, Inc. conveyed Lot 5 of the Subdivision by deed subject to the restrictions “set out in the instrument [resolution] recorded in Vol. 823, p. 584, Harris County Deed Records”. Lot 25 is the only other lot in the Subdivision which Live Oaks, Inc. conveyed by deed making specific reference to the restrictions recorded in Vol. 823, p. 584 of the deed records. On January 29, 1930, after conveyance of Lot 5 and after the resolution containing the restrictions had been filed, a plat referred to as' Second Amended Map of Liveoaks was filed in the map records of Harris County, Texas (Vol. 10, p. 48), containing Lots 1 through 45 and Lots A through F.

Live Oaks, Inc. conveyed a total of 16 parcels of land before it was placed in receivership. In the deeds subsequent to the conveyance of Lot 5, with the exception of Lot 25, it conveyed the property by deeds containing a provision reading substantially, “subject to those building restrictions which are of record”, without specific reference to the volume or page of the records or county where recorded. On January 16, 1934, Otto W. Reichert, as receiver of Live Oaks, Inc., conveyed to I. G. Strauss said Lot 10 of Large Lot No. 48 in Obedience Smith Survey in Harris County, Texas, except two specifically described 1-acre tracts and two tracts 50 by 100 feet in size, without mention of “Liveoaks”. The deed does not convey any land or lots by reference to the plat of Liveoaks, does not except lots previously sold, and does not convey the land subject to any restrictions.

The following map, based on defendants’ Exhibit 2, though not precisely to scale, shows the general location and size of the lots in the addition and certain data with respect to restrictions:

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Bluebook (online)
335 S.W.2d 862, 1960 Tex. App. LEXIS 2245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keith-v-seymour-texapp-1960.