JONES, Justice.
This is an appeal by the complainants below from an adverse declaratory decree. [659]*659Frank T. Kennedy, one of the complainants, contracted with the First National Bank of Birmingham, the other compainant, for the purchase of a lot owned by the Bank, as trustee of the estate of Susie M. Milner, deceased, on the condition that the Bank is able to remove or nullify any restrictive covenant which would prevent Kennedy from building a house thereon. Mr. and Mrs. John C. Henley, III, respondents, own the adjoining property.
In 1915, the properties here in question were part of a tract that was subdivided into 100-foot lots. On April 14, 1915, Milner Land Company conveyed to Lillian M. Orr Lots 24 and 25 subject to restrictions to be in force until January 1, 1930, which read in part:
“3. That no more than one dwelling house and necessary servant houses and outhouses shall be built and exist on each of said lots at any one time.”
The east y of Lot 22, Lot 23 and Lot 26 of such survey, being located on either side of Lots 24 and 25, were part of the same subdivision and between 1915 and 1917 came to be owned by George Connors and Forney Johnston, so that in early 1917, the ownerships in the area were as follows:
On August 9, 1917, Orr conveyed the west 25 feet of Lot 24 to Connors. The deed contains the following covenant:
“This conveyance is made subject to the conditions and limitations contained in that certain deed executed by the Milner Land Company to the grantor, Lillian M. Orr on the 14th of April, 1915, conveying the above described property,
“The grantor herein agrees for herself, her heirs, executors and assigns that not more than one dwelling house and outhouses shall be built and exist at any one time on the remaining portion of Lots 24 and 25 and the grantee herein agrees for himself and his executors, heirs and assigns that not more than one dwelling house and outhouses shall be built and exist at any one time on lots owned by him in said survey.”
Thus, in August, 1917, the following situation existed:
[660]*660August, 1917
Two months later, on October 30, 1917, Orr conveyed to her other neighbor, Johnston, the east 25 feet of Lot 25 with the following provisions:
• • the undersigned for themselves, their heirs and assigns, do further covenant to and with the said Forney Johnston, his heirs and assigns, that the undersigned will not build or permit the building of more than one residence or dwelling with the necessary garage and outbuildings on the remaining property in lots 24 and 25 in block 6, according to said survey, now owned by the undersigned or either of them, after conveying the above described strip to Forney Johnston and a similar strip off the westerly side of lot 24 to G. W. Connors,
In October, 1917, the ownerships were, therefore, as follows:
October, 1917
[661]*661A dwelling house was constructed by-Johnston, principally on Lot 36 but partially on the east 25 feet of Lot 25. Johnston lived in this residence until 1921, when he and his wife conveyed the property to B. M. Brasfield.
Until June 24, 1922, Orr still owned three-fourths of Lot 25 and three-fourths of Lot 24. As stated, Brasfield had .purchased the property adjoining Orr to the east the previous year. Connors still owned the property now held by appellees —Mr. and Mrs. John C. Henley — to the west of Orr.
On June 24, 1922, three things happened. (1) Orr conveyed an additional 25 feet of Lot 25 to Brasfield. (2) Orr conveyed to Murray Brown the west half of Lot 25 and the east three-fourths of Lot 24 (the same property now owned by appellants). (3) Connors and Brown entered into an agreement which provides:
“. . . Whereas, the said George W. Connors is the owner of that part of Lot twenty-four in block six . . . which fronts twenty-five feet on Crest Road and twenty feet on the alley in the rear of said lot, and being the same twenty-five feet heretofore conveyed to the said George W. Connors by Lillian M. Orr and her husband, C. P. Orr; And Whereas, the said Murray Brown is about to purchase from the said Lillian M. Orr the remaining portion of said lot twenty-four for the purpose of erecting a residence thereon; now then in consideration of the premises and the further sum of five dollars in hand paid and other valuable considerations, the said George W. Connors for himself, his heirs and assigns hereby covenants with the said Murray Brown, his heirs and assigns that no dwelling house shall ever be erected on that part of said lot twenty-four now owned by the said George W. Connors as aforesaid, nor on any part of said lot twenty-four now owned by the said George W. Connors
Thus, in June of 1922, the ownerships bore the same breakdown as today:
June, 1922, to Present
Brown did not build on his property but held the same until March 9, 1927, when he sold it to Scruggs Investment Company, Inc. On June 28, 1944, Scruggs conveyed it to Susie M. Milner, the predecessor in title to appellants. Two years later Mil[662]*662ner purchased the Brasfield property from the grantee of the Brasfield heirs.
In 1966, Milner’s estate sold the Bras-field property to Mr. and Mrs. James Martin who in 1972 conveyed to Mr. and Mrs. Nelson. Also, in 1972, the Bank, as trustee of the Milner estate, contracted to sell to Kennedy for residential purposes the Brown property (the subject 125-foot lot), contingent on a determination that a house could be constructed thereon.
The Henleys gained title to their property from the heirs of Connors in 1966, and the deed is made subject to the August, 1917, Orr-Connors deed and the 1922 Connors-Brown agreement.
We observe initially that it is without dispute that because the evidence before the trial Court was by stipulation of the parties, and testimony was not taken orally, the ore tenus rule of review does not apply. Donald v. Donald, 270 Ala. 483, 119 So.2d 909 (1960) ; Skinner v. Ellis, 245 Ala. 397, 17 So.2d 416 (1944). Our de novo consideration and resolution of the issues here presented are governed by the following legal propositions:
1. Where the language in a deed is plain and certain, acts and declarations of the parties cannot be resorted to to aid a construction. Lietz v. Pfuehler, 283 Ala. 282, 215 So.2d 723 (1968); Hall v. Long, 199 Ala. 97, 74 So. 56 (1917); Dunn & Wife v. The Bank of Mobile, 2 Ala. 152 (1841).
2. Where an ambiguity exists in the provisions of a deed, subsequent acts of the parties showing thé construction they put on the instrument, are entitled to gfeat weight in determining what the parties intended. Slaten v. Loyd, 282 Ala. 485, 213 So.2d 219 (1968); Irwin v. Baggett, 231 Ala. 324, 164 So. 745 (1935).
3. Restrictive covenants are to be construed according to the intent of the parties in the light of the terms of the restriction and surrounding circumstances known to the parties. Virgin v. Garrett, 233 Ala. 34, 169 So. 711 (1936); Chattahoochie & Gulf Railway Co. v. Pilcher, 163 Ala. 401, 51 So. 11 (1909).
4. Restrictions against the free use and enjoyment of property are not favored in law and such restrictions are to be strictly construed.
Free access — add to your briefcase to read the full text and ask questions with AI
JONES, Justice.
This is an appeal by the complainants below from an adverse declaratory decree. [659]*659Frank T. Kennedy, one of the complainants, contracted with the First National Bank of Birmingham, the other compainant, for the purchase of a lot owned by the Bank, as trustee of the estate of Susie M. Milner, deceased, on the condition that the Bank is able to remove or nullify any restrictive covenant which would prevent Kennedy from building a house thereon. Mr. and Mrs. John C. Henley, III, respondents, own the adjoining property.
In 1915, the properties here in question were part of a tract that was subdivided into 100-foot lots. On April 14, 1915, Milner Land Company conveyed to Lillian M. Orr Lots 24 and 25 subject to restrictions to be in force until January 1, 1930, which read in part:
“3. That no more than one dwelling house and necessary servant houses and outhouses shall be built and exist on each of said lots at any one time.”
The east y of Lot 22, Lot 23 and Lot 26 of such survey, being located on either side of Lots 24 and 25, were part of the same subdivision and between 1915 and 1917 came to be owned by George Connors and Forney Johnston, so that in early 1917, the ownerships in the area were as follows:
On August 9, 1917, Orr conveyed the west 25 feet of Lot 24 to Connors. The deed contains the following covenant:
“This conveyance is made subject to the conditions and limitations contained in that certain deed executed by the Milner Land Company to the grantor, Lillian M. Orr on the 14th of April, 1915, conveying the above described property,
“The grantor herein agrees for herself, her heirs, executors and assigns that not more than one dwelling house and outhouses shall be built and exist at any one time on the remaining portion of Lots 24 and 25 and the grantee herein agrees for himself and his executors, heirs and assigns that not more than one dwelling house and outhouses shall be built and exist at any one time on lots owned by him in said survey.”
Thus, in August, 1917, the following situation existed:
[660]*660August, 1917
Two months later, on October 30, 1917, Orr conveyed to her other neighbor, Johnston, the east 25 feet of Lot 25 with the following provisions:
• • the undersigned for themselves, their heirs and assigns, do further covenant to and with the said Forney Johnston, his heirs and assigns, that the undersigned will not build or permit the building of more than one residence or dwelling with the necessary garage and outbuildings on the remaining property in lots 24 and 25 in block 6, according to said survey, now owned by the undersigned or either of them, after conveying the above described strip to Forney Johnston and a similar strip off the westerly side of lot 24 to G. W. Connors,
In October, 1917, the ownerships were, therefore, as follows:
October, 1917
[661]*661A dwelling house was constructed by-Johnston, principally on Lot 36 but partially on the east 25 feet of Lot 25. Johnston lived in this residence until 1921, when he and his wife conveyed the property to B. M. Brasfield.
Until June 24, 1922, Orr still owned three-fourths of Lot 25 and three-fourths of Lot 24. As stated, Brasfield had .purchased the property adjoining Orr to the east the previous year. Connors still owned the property now held by appellees —Mr. and Mrs. John C. Henley — to the west of Orr.
On June 24, 1922, three things happened. (1) Orr conveyed an additional 25 feet of Lot 25 to Brasfield. (2) Orr conveyed to Murray Brown the west half of Lot 25 and the east three-fourths of Lot 24 (the same property now owned by appellants). (3) Connors and Brown entered into an agreement which provides:
“. . . Whereas, the said George W. Connors is the owner of that part of Lot twenty-four in block six . . . which fronts twenty-five feet on Crest Road and twenty feet on the alley in the rear of said lot, and being the same twenty-five feet heretofore conveyed to the said George W. Connors by Lillian M. Orr and her husband, C. P. Orr; And Whereas, the said Murray Brown is about to purchase from the said Lillian M. Orr the remaining portion of said lot twenty-four for the purpose of erecting a residence thereon; now then in consideration of the premises and the further sum of five dollars in hand paid and other valuable considerations, the said George W. Connors for himself, his heirs and assigns hereby covenants with the said Murray Brown, his heirs and assigns that no dwelling house shall ever be erected on that part of said lot twenty-four now owned by the said George W. Connors as aforesaid, nor on any part of said lot twenty-four now owned by the said George W. Connors
Thus, in June of 1922, the ownerships bore the same breakdown as today:
June, 1922, to Present
Brown did not build on his property but held the same until March 9, 1927, when he sold it to Scruggs Investment Company, Inc. On June 28, 1944, Scruggs conveyed it to Susie M. Milner, the predecessor in title to appellants. Two years later Mil[662]*662ner purchased the Brasfield property from the grantee of the Brasfield heirs.
In 1966, Milner’s estate sold the Bras-field property to Mr. and Mrs. James Martin who in 1972 conveyed to Mr. and Mrs. Nelson. Also, in 1972, the Bank, as trustee of the Milner estate, contracted to sell to Kennedy for residential purposes the Brown property (the subject 125-foot lot), contingent on a determination that a house could be constructed thereon.
The Henleys gained title to their property from the heirs of Connors in 1966, and the deed is made subject to the August, 1917, Orr-Connors deed and the 1922 Connors-Brown agreement.
We observe initially that it is without dispute that because the evidence before the trial Court was by stipulation of the parties, and testimony was not taken orally, the ore tenus rule of review does not apply. Donald v. Donald, 270 Ala. 483, 119 So.2d 909 (1960) ; Skinner v. Ellis, 245 Ala. 397, 17 So.2d 416 (1944). Our de novo consideration and resolution of the issues here presented are governed by the following legal propositions:
1. Where the language in a deed is plain and certain, acts and declarations of the parties cannot be resorted to to aid a construction. Lietz v. Pfuehler, 283 Ala. 282, 215 So.2d 723 (1968); Hall v. Long, 199 Ala. 97, 74 So. 56 (1917); Dunn & Wife v. The Bank of Mobile, 2 Ala. 152 (1841).
2. Where an ambiguity exists in the provisions of a deed, subsequent acts of the parties showing thé construction they put on the instrument, are entitled to gfeat weight in determining what the parties intended. Slaten v. Loyd, 282 Ala. 485, 213 So.2d 219 (1968); Irwin v. Baggett, 231 Ala. 324, 164 So. 745 (1935).
3. Restrictive covenants are to be construed according to the intent of the parties in the light of the terms of the restriction and surrounding circumstances known to the parties. Virgin v. Garrett, 233 Ala. 34, 169 So. 711 (1936); Chattahoochie & Gulf Railway Co. v. Pilcher, 163 Ala. 401, 51 So. 11 (1909).
4. Restrictions against the free use and enjoyment of property are not favored in law and such restrictions are to be strictly construed. Springdale Gayfer’s Store Co., Inc. v. D. H. Holmes Co., 281 Ala. 267, 201 So.2d 855 (1967); Bear v. Bernstein, 251 Ala. 230, 36 So.2d 483 (1948); Virgin v. Garrett, supra.
The crucial language of the subject covenant in the Orr-Connors deed is:
“The grantor herein agrees that not more than one dwelling house . shall be built and exist at any one time on the remaining portion of Lots 24 and 25.”
The question, then, is: Does the use of the words “not more than one dwelling house . . . ” include that portion of the Johnston house built on the E '¡4 of Lot 25 so as to render the remainder of Lots 24 and 25 (150 feet) useless?
The Henleys contend that the language of this covenant is clear, unambiguous, and bears no interpretation. When Orr later sold Johnston 25 feet off the east side of Lot 25 and Johnston built a portion of his house thereon, say the Henleys, and construction of a residence on the remaining portions of Lots 24 and 25 would constitute “more than one dwelling”.
We cannot agree that, within the factual context of this covenant, the language [663]*663lends itself to but one interpretation. The original subdivision covenant restricted each dwelling to a minimum of 100-foot frontage. Prior to August, 1917, Orr owned two 100-foot lots on which she was entitled to build two houses. One neighbor to the east (Connors) owned 1 and % lots (175 feet) and one neighbor to the west (Johnston) owned 1 lot (100 feet). It is evident that each neighbor desired 25 feet of additional frontage for the purpose of constructing his residence. At the time Orr conveyed 25 feet to Connors in August, 1917, it is entirely reasonable to assume that Connors wished to make clear that this reduction in the size of Lot 24 would reduce Orr to one rather than two dwellings on the remaining 175 feet. Also, it is reasonable to assume that Connors was interested in extending the original subdivision restriction beyond the January 1, 1930, deadline.
To assume, as appellees contend, that Orr’s subsequent conveyance to Johnston of 25 feet to accommodate a portion of Johnston’s dwelling rendered the balance of Orr’s property (150 feet) useless is unreasonable, and infers an intention of the parties that is nonsensical. Why would Orr deliberately destroy the utility of the remaining portions of two lots equal in size to I1/2 of the original lots in order to sell her neighbors 25 feet each? The absurdity of the supposition upon which this question is based is compounded by the factual certainty that in each instance it was the neighbor who sought the purchase and not Orr who sought the sale. Indeed, Orr made her answer to this question perfectly clear in her deed to Johnston in which she reserved the right to build on the remaining 150 feet. To be sure, Connors was not a party to the Orr-Johnston deed; but Connors executed the Brown agreement, which spelled out Brown’s intention to build on the Orr property, subsequent to Johnston’s construction on his 25 feet.
Surely, it is beyond the realm of speculation that at the time of the Brown-Connors agreement, Connors knew two crucial facts: (1) He knew the exact location of the Johnston dwelling which occupied a portion of Orr’s original Lot 25. This fact is inescapable since for at least four years Johnston and Connors were next door neighbors and the space which separated the west side of Johnston’s house from the east side of Connors’ house was essentially the area purchased by Brown from Orr as a building site at the same time as the Brown-Connors agreement. (2) He knew further that, in order to build a house on Lot 24 (under the subdivision restrictions), Brown necessarily had to utilize the remainder of Lot 25, which after the sale of an additional 25 feet to Brasfield (who now owned the Johnston property), consisted of 50 feet, or a total of 125 feet for the remaining portions of Lots 24 and 25.
It is thus that, from all these circumstances, we are drawn to -the conclusion that Connors’ execution of the agreement with Brown evinced an intention on his part entirely consistent with that of Orr at the time of the Orr-Connors covenant, i. e., that the subsequent sale by Orr of 25 feet to Johnston and Johnston’s construction of a portion of his house thereon did not render the balance of Orr’s two lots useless under the terms of the Orr-Connors convenant.
“The court must put itself in the position of the parties. It must know what they knew, in order to ascertain, not what they intended to put in writing, but what meaning they attached to the words used." Chattahoochie & Gulf Railway Co. v. Pilcher, supra.
As this Court stated in White v. Harrison, 202 Ala. 623, 81 So. 565 (1919):
“Covenants will, in general, be most strongly construed against the covenan[664]*664tor; still the paramount rule is to so expound them as to give effect to the actual intent of the parties [citation omitted] ;”
We believe it is clear that the parties to the covenant in question — Orr and Connors —intended that not more than one house would exist at any one time on a frontage lot of less than 100 feet. The present frontage of Lots 24 and 25, as reconstituted, is 125 feet. The rule of strict construction of restrictive covenants and the rule to give effect to the intention of the parties accommodate, here, to the same result, i. e., that the covenant in question is not enforceable so as to prohibit the use of this property for the erection of a residence thereon.
This Court holds that the reconstituted lots, now consisting of a single building site of 125 foot frontage, are not prohibited from use for residential construction under the terms of the covenant in question.
Reversed and remanded.
HEFLIN, C. J., and HARWOOD, BLOODWORTH, MADDOX and FAULKNER, JJ., concur.
COLEMAN, J., dissents.
MERRILL and McCALL, JJ., concur.