Watson v. Wiseheart

Court of Appeals of Texas

Watson v. Wiseheart

258 S.W.2d 350, 1953 Tex. App. LEXIS 1778

CourtCourt of Appeals of Texas

DecidedApril 30, 1953

Docket12458

StatusPublished

Cited by5 cases

This text of 258 S.W.2d 350 (Watson v. Wiseheart) 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

Watson v. Wiseheart, 258 S.W.2d 350, 1953 Tex. App. LEXIS 1778 (Tex. Ct. App. 1953).

Pincite

Opinion

CODY, Justice.

This is an appeal from a temporary injunction restraining appellants from improving, using and occupying lots 6, 7, 8 and 9 in Block 1 of Bradford Place, an addition to the City of Houston, as a filling station, contrary to the provisions of restrictions which had allegedly been imposed thereon. The suit was instituted individually by eighteen owners of lots therein, as well as a class suit to represent all other lot owners. The addition is a small one, and we affix as an appendix hereto a copy of its plat, as dedicated' by H. B. Williamson, in 1920, identified in the Statement of Fact's as plaintiffs’ exhibit No. 1.

The addition is located between a mile and mile and a half west of the Shamrock Hotel. It will be noted that the lots in question are adjacent to, and south of Bellaire Boulevard. The south boundary line of the corporate limits of the City of West University Place, at this point, lies immediately across Bellaire Boulevard from the addition, and the' area of that city, so across from Bradford Place-, is zoned for residences only. On the west, the addition is bounded by a deep drainage ditch which marks the boundary between the cities of Houston and South-side Place, which ditch -has been constructed also' so as to mark its south boundary. The east boundary of the addition is formed by Thomas Street, to the east of which is the church, parish house and school of St. Vincent de Paul. The nearest commercial building, on the other side of St. Vincent de Paul, east, toward the ■Shamrock Hotel, is distant a half mile, or more.

In late February, 1952, appellant Watson Oil Company, acting through one of the partners who composed it, orally leased from the husband of Mrs. Lucile A. Cal-. *352 houn, acting as her agent, the lots in question and on March 1, 1952, began the preliminary work looking .to the erection of a filling station thereon. The next day, which was Sunday, various .lot owners in the addition warned appellants that the lots were restricted to residences. No contention is made that appellees stood by and permitted appellants to proceed with the work of improving the lots for use as a filling station, so as to have waived any right which they had. In their petition to prevent threatened violations of restrictions, appellees alleged that, by the provisions thereof, -the lots in the addition could be used for residential purposes only, and that no business of any description could be carried on therein; that the restrictions should remain in force until January 1, 1970; and that the.same should run in favor of the owners, their heirs and assigns, and that any person owning property which was subject to said restrictions should have the right to enforce the same.

The defendants below, appellants here, consisted of the members of the partnership composing the Watson Oil Company, and Mrs. Calhoun, and her husband. There is no contention made that the pleadings were insufficient to present the issues determined, interlocutorily, by the court. At this point it will be sufficient to state that appellees plead that all of the owners of lots in the addition executed a covenant which imposed the restrictions thereon, which appellees were seeking to enforce. The owner of most lots, when said covenant of 1939 was executed, was H. B. Williamson; he was the last of the owners to sign the instrument. And he alone acknowledged the execution thereof, which was on March 9, 1939, and the instrument was filed for record on Mjarch 13, 1939.

Thereafter, in 1940, lots 6, 7, 8 and 9 in block 1, which are the subject of controversy here, were deeded by H. B. Williamson and wife to Mrs. Calhoun, as her separate property. The deeds in, question did not refer to the restrictions. , At the time of the conveyance, and at the time the instrument of 1939 was executed lots 8 and 9, aforesaid, were the separate property of Mrs. Williamson. Mrs. Williamson 1 also owned two other lots in this addition as her separate property when she signed the.'instrument of 1939.

Appellants predicate their appeal upon five points, the first of which complains of the issuance of the temporary injunction “because no valid restrictions on Bradford Place were ever created or imposed.”

It is true that an easement is an interest in land. Settegast v. Foley Bros. Dry Goods Co., 114 Tex. 452, 270 S.W. 1014. But it was not necessary for Mrs. Williamson 'to acknowledge her execution of the instrument of 1939-in order to establish the restrictions therein provided for as binding on the four lots which she then owned' as her separate property, inclusive of aforesaid lots 8 and 9, here involved. The execution by her was evidence from which the court was authorized, if indeed not compelled, to' conclude, that Mrs. Williamson intended thereby that her aforesaid lots should be subject to the restrictions contained in aforesaid instrument. It was held in Clements v. Taylor, Tex.Civ.App., 184 S.W.2d 485, 488, “ * * * ‘A mutual restrictive covenant between lot owners is binding although not signed by the owners of all lots in the territory covered where it was. the intention that the restriction should bind, them all.”' (Citing authority.) Quoting further from the case, “Even, therefore, if between the assignees of Paul Richardson and the assignees of the Ragsdale heirs the individual interest of Mrs; Ater [who represented both .herself and the other. Rags-dale heirs] was not bound because of the non-joinder of her husband the restrictions upon appellees’ land are none the less enforceable because they are mutually binding upon them and the assignees of the Rags-dale heirs, other than Mrs. Ater.” (Emphasis supplied.) Indeed, there was evidence that Mrs. Williamson actively represented to at least one purchaser that all lots in the addition were subject to the aforesaid restrictions. See also Wilson Co. v. Gordon, Tex.Civ.App., 224 S.W. 703, writ dismissed.

Even if it is true, as asserted by appellants, that not every lot owner joined *353 in the execution of the instrument of 1939, the instrument is none the less binding on the lots of those who did. Clements v. Taylor, supra; Goodstein v. Huffman, Tex.Civ.App., 222 S.W.2d 259; Bethea v. Lockhart, Tex.Civ.App., 127 S.W .2d 1029. There was evidence which showed that a Mrs. Farish owned Lot 1, in Block 2, as her separate property, but that her husband signed the instrument, representing therein that he was the owner thereof. However, if we assume that Mrs. Farish was not thereby subjected to the restrictions in the instrument of 1939, it does not follow that said lot was not otherwise subjected to the restriction for residential use only. Indeed, appellees state, and appellants do not deny, that at a date prior to the time the property was conveyed to Mrs. Farish, said lot had been so subjected to the restriction requiring same to be used for residential purposes only, in prior deeds which were in her chain of title.

Also, the fact that some of the property in the addition had been subjected to the homestead character at and before the time the 1939 instrument was executed, did not require that the wife join her husband in executing same, and acknowledge same in the same manner as if she were making a conveyance thereof, in order to be subjected to the restrictions.

Free access — add to your briefcase to read the full text and ask questions with AI