Scheuer v. Britt , 218 Ala. 270 ( 1928 )

The appellee insists that the foregoing opinion is in conflict with the holding on the former appeal, and is not supported by the authorities which it cites.

To restate the doctrine announced on the former appeal (217 Ala. 196, 115 So. 237):

"Where a defined district is platted and publicly offered as a restricted district, the restrictive clauses in the several deeds are construed as mutual covenants, each lot subject to a servitude or easement in favor of all the others, includingunsold lots of the grantor in the same plat. Such servitude being appurtenant to and running with the land, any subsequentpurchaser of the lot within the plat, with notice of the easement thereon, takes it subject thereto, as between himself and other lot owners, although no restriction is incorporatedin his deed." (Italics supplied.)

Taking the averments of the bill as true, Mamie D. Jones and Brown, Duskin Heilpern, in putting the subdivision of South Cloverdale on the market as a restricted residence district, excluding commercial enterprises and limiting sales to white people, were engaged in a joint enterprise. Mrs. Jones conveyed to Brown, Duskin Heilpern the south half of the subdivision for their assistance in promoting this general scheme, and thereafter Brown, Duskin Heilpern conveyed to the complainant the property she now owns, located in that part of the subdivision conveyed to them by Mrs. Jones, with the restrictive clause in her deed, and subsequently sold and conveyed to the defendant the property which he now owns, not without restrictions, but embodied in his deed the following restrictions:

"It is understood that no main residence is to be built on either of said lots to cost less than $5,000. This does not refer to servant houses, garages, barns, or other outbuildings used in connection with said main residence."

And he took with notice that his property was within the district put on the market as a strictly residence district.

Under the stated doctrine, when Brown, Duskin Heilpern sold and conveyed to complainant, they laid on each and every lot then owned by them in said subdivision, including the lots afterwards sold to the defendant, the same restriction as to the use of the property embodied in complainant's deed; and the restrictive covenant embodied in defendant's deed, when construed in the light of the circumstances averred in the bill, limits the use of his property to use as residence property. McGhee et al. v. Alexander et al., 104 Ala. 116,16 So. 148.

This brings the case squarely within the doctrine announced in Allen v. Barrett, 213 Mass. 36, 99 N.E. 575, Ann. Cas. 1913E, 820, where it was said:

"As to the other plaintiffs it is enough to say that the evidence warrants the findings of the trial judge, in effect that they were owners of other lots on the Montvale plan; that the restrictions in their deeds from the trustee were similar to those in the Taber deed, and were imposed as part of a general plan for the benefit of the several lots; that they had bought the land and erected residences thereon in compliance therewith; and that they were not guilty of laches. Under such facts the restrictions give to each grantee a right in the nature of an easement which will be enforced in equity against the grantee of another of the lots, although there is no direct contractual relation between the two grantees. And the fact that the restrictions are not exactly the same in all the deeds does not tend to show that the restriction in question was not intended to apply alike to all" — citing Hano v. Bigelow,155 Mass. 341, 29 N.E. 628; Bacon v. Sandberg, 129 Mass. 396; Evans v. Foss, 194 Mass. 513, 80 N.E. 587, 9 L.R.A. (N.S.) 1039, 11 Ann. Cas. 171; Sayles v. Hall, 210 Mass. 281, 96 N.E. 712, 41 L.R.A. (N.S.) 625, Ann. Cas. 1912D, 475; 14 Ann. Cas. 1021, note.

Nor is it necessary that the restrictive covenant running with the land should be incorporated in the defendant's deed to take out of the influence of the statute of frauds; the servitude may be laid on the property by a separate writing, to which he is not a party, if he is in privity with and claiming under one of the parties thereto, and has notice thereof. Webb v. Robbins, 77 Ala. 176; Noojin v. Cason, 124 Ala. 458,27 So. 490; Gilmer v. M. M. Ry. Co., 79 Ala. 569, 58 Am. Rep. 623; Ladd v. Boston, 151 Mass. 585, 24 N.E. 858, 21 Am. St. Rep. 481.

Here the servitude was laid on the property by the conveyance made by Brown, Duskin Heilpern to complainant in pursuance of the general scheme of improvement, affecting not only the lots conveyed to complainant, but unsold lots then held by complainant's grantors, including the lots afterwards sold to the defendant. Scheuer v. Britt, 217 Ala. 196, 115 So. 237.

This doctrine is neither strange nor anomalous, as appears from the numerous authorities collected in the note to 21 A.L.R. pages 1300-1326, and finds a striking analogy in the doctrine, often recognized by the court, that where the owner of land lays it off in lots, blocks, and streets, as a subdivision, and the sale of lots is made in reference thereto, and purchases are made on the faith of the act, this operates as a dedication of the street and gives the several lot owners an easement thereon, and this is so without reference to the statute, City of Demopolis v. Webb, 87 Ala. 659, 6 So. 408; Weiss et al. v. Taylor et al., 144 Ala. 440, 39 So. 519; Ft. Payne Co. v. City of Ft. Payne, 216 Ala. 679, 114 So. 63.

On the other hand, it would be strange indeed to hold that one may lay off a subdivision for strictly residential purposes, as a general scheme of improvement, and sell and convey to numerous purchasers on the faith thereof, incorporating in their deeds restrictive covenants as to the use in pursuance of such scheme, that the promoters of the general scheme could destroy the scheme, to the detriment of such purchasers, by selling to others without such restrictions, when they had notice of such general scheme.

On the former appeal, as appears from the opinion, there were "no averment of any restriction upon the use of lots within the area incorporated in the deed of this complainant, nor in any of the deeds to lots sold at public auction or thereafter, nor that such restriction appeared on the recorded plat and was thus incorporated by reference into such deeds," and what was there said as to the statute of frauds was applicable to the case as then presented. These defects have been cured by the amendments to the bill, presenting the case in a different light, and the case as now presented by the averments of the bill is governed by the rules of law stated above.

Application overruled.

All the Justices concur.