Smith v. Second Church of Christ, Scientist, Phoenix

351 P.2d 1104, 87 Ariz. 400, 84 A.L.R. 2d 766, 1960 Ariz. LEXIS 175
CourtArizona Supreme Court
DecidedMay 11, 1960
Docket6659
StatusPublished
Cited by28 cases

This text of 351 P.2d 1104 (Smith v. Second Church of Christ, Scientist, Phoenix) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Second Church of Christ, Scientist, Phoenix, 351 P.2d 1104, 87 Ariz. 400, 84 A.L.R. 2d 766, 1960 Ariz. LEXIS 175 (Ark. 1960).

Opinions

BERNSTEIN, Justice.

Plaintiff-appellee Second Church of Christ, Scientist, Phoenix, Arizona (hereinafter called the “appellee”) commenced this action for a declaratory judgment against the other owners of property in Block 2, Orangewood, to determine whether the land owned by it in lot 10 thereof is encumbered by restrictive covenants [403]*403which prevent the building of a church. The court below entered summary judgment in favor of appellee, from which judgment this appeal has been taken by the other owners.

Block 2, Orangewood, is a tract of land in Maricopa County of approximately 160 acres, divided into lots numbered one through twenty. On March 7, 1913, a deed covering lots one through ten was recorded in Book 103 of Deeds, at pages 111 and 112, and contained the following clause (hereinafter called the “1913 covenant”):

“It is provided and covenanted as a covenant running with the land herein described and each and every part thereof that the grantee shall erect no dwellings on said land the cost of which shall be less than $4,000.00 each and it is further covenanted that no barns, garages or other buildings whatsoever shall be erected on said land until after the construction of said dwellings shall be well under way; provided that the above restrictions shall not apply to the West one-half of said premises.” (Lot 10 is in the West one-half of said premises.)

On October 28, 1944 the Arizona Title Guarantee & Trust Company, as trustee, recorded in Book 66 of Miscellaneous Records, at page 570, a Declaration of Restrictions (hereinafter called the “1944 restrictions”) on lots eleven through seventeen and the west one-quarter of lots five and six. The restrictions contained therein, which were declared to be “covenants and restrictions running with said lot or lots or parcels of land situated in said tract for the mutual benefit of the undersigned and all subsequent grantees of any portion thereof,” are as follows:

“1. That said property shall be used for single dwelling houses only, except as provided, in Number 9 thereof.
“2. That no dwelling erected thereon shall cost less than Seventy-five Hundred ($7,500.00) Dollars.
“3. That no out building constructed thereon shall be more than one story in height and the main residence building shall comprise not less than fifteen hundred (1500) square feet of floor space.
“4. That no dwelling or out building shall be constructed nearer than sixty (60) feet to the front property line or nearer than ten (10) feet to any side line.
“5. That no out building or garage of any kind may be constructed until the main building has been constructed; or used temporarily or permanently as a dwelling or place of abode until the main residence has been completed.
******
[404]*404“8. That the undersigned and its grantees shall incorporate these covenants and restrictions in any deeds executed by them to lots in the above described tract either in full or by reference.
* * * * *
“10. That the foregoing covenants and restrictions shall run with the land for a period of twenty-five (25) years and that the grantees or any one owning land in said tract may have all appropriate rights to enforce the same.”

By deed dated December 1, 1944, the Arizona Title Guarantee and Trust Company “granted, sold and conveyed” lot 10 to Charles F. and Myra U. Black. The following language appeared in the habendum clause:

“And the Grantor hereby binds itself * * * to warrant and defend, all and singular the said property unto the said Grantees, their heirs and assigns * * * subject to * * * building and other restrictive covenants attaching to and running with the title, set forth in particular in Book 103 of Deeds, page 111 * *

Thereafter, the Blacks’ conveyed their interest in lot 10 as follows:

On April 15, 1952 they conveyed the north half (hereinafter called “parcel 1”) to appellants Clarence J. and Thelma B. Smith “Subject To: * * * Restrictions as contained in Warranty Deed recorded (the 1913 covenant) * *

On September 24, 1952, they conveyed the southeast quarter (hereinafter called “parcel 2”) to Frank W. and Louise Paul Beer “Subject To: * * * Restrictions as set forth in instrument of record, recorded (the 1944 restrictions) * * * and as contained in Warranty Deed, recorded (the 1913 covenant) * *

On March 23, 1956, they conveyed the southwest one-eighth (hereinafter called “parcel 3”) to Ralph A. and Ethel M. Harvey (who have apparently transferred their interest to two of the appellants herein) “Subject To: * * * Restrictions in instruments recorded (the 1913 covenant and 1944 restrictions) * *

On May 21, 1957, Myra H. Black, “dealing with her sole and separate property” conveyed the balance of lot 10, or the west-central one-eighth thereof (hereinafter called “parcel 4”) to appellee “Subject To: * * * Restrictions,' conditions and covenants as contained in instrument recorded (the 1913 covenant) * * The Blacks had no further interest in lot 10 following this conveyance, and are not parties to this action.

On May 21, 1957 appellee acquired title to parcel 2 by a conveyance from the Beers “Subject To: * * * Restrictions, conditions and covenants as contained in instrument recorded (the 1913 covenant) * * ‡ »

[405]*405We consider first what rights, if any, the owners of property in Block 2, other than lot 10, have to assert restrictions against appellee’s interests in parcels 2 and 4 in lot 10. It is clear that they have no standing arising from the original declarations of the 1913 covenant and the 1944 restrictions. The 1913 covenant is expressly inapplicable “to the West one-half of said premises,” within which area lot 10 lies; and the 1944 restrictions do not purport to apply to lot 10.

Nor can such owners of property outside lot 10 assert rights against any owners of lot 10 on the basis of the 1944 deed to the Blacks. That deed conveyed an estate in fee simple without any qualifications or conditions (see A.R.S. §§ 33-432, 33-435). The reference to the 1913 covenant following the words “subject to” is a qualification to the warranty made by the grantor and does not even purport to be a burden on the estate conveyed to the grantee.

Accordingly, there were no enforceable restrictions on lot 10 at the time the Blacks acquired title thereto in 1944. Such restrictions as are asserted in this proceeding must arise, if at all, from the deeds (hereinafter called the “Black deeds”) which the Blacks executed in conveying their interest in parcels 1 through 4 in lot 10. On the basis of such deeds, the owners of property outside of lot 10 can, assuredly, maintain no interest. The Blacks were not their grantors and there is no theory applicable to this case upon which they can claim benefits emanating from provisions in deeds executed at a subsequent time, to other property and in favor of other grantees. See O’Malley v. Central Methodist Church, 67 Ariz. 245, 250-251, 194 P.2d 444; Korn v. Campbell, 192 N.Y. 490, 85 N.E.

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Cite This Page — Counsel Stack

Bluebook (online)
351 P.2d 1104, 87 Ariz. 400, 84 A.L.R. 2d 766, 1960 Ariz. LEXIS 175, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-second-church-of-christ-scientist-phoenix-ariz-1960.