THRASHER v. BEAR, 239 Ala. 438 (1940)


THRASHER v. BEAR, 239 Ala. 438 (1940)
195 So. 441

THRASHER v. BEAR.

3 Div. 314.Supreme Court of Alabama.
April 11, 1940.

Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.Page 439

Thomas Thomas, of Montgomery, for appellant.

There is no presumption of correctness of the decree below, there being no oral testimony before the court. McDermott v. Halliburton, 220 Ala. 553, 126 So. 854; Montgomery v. McNutt,214 Ala. 692, 108 So. 752. Complainant has such interest in preservation and enforcement of the restrictions and reservations applicable to the plat as would entitle him to injunctive relief. Scheuer v. Britt, 218 Ala. 270, 118 So. 658; Id., 217 Ala. 196, 115 So. 237; 18 C.J. 294, 463; Patton on Titles, 663, ? 194. He may seek injunction when violation of such restrictions and reservations is threatened, and is not required to wait until suchPage 440
violation is completed. 4 Thompson, Real Prop. 561, ? 3441. The instrument of July 20, 1939, purporting to limit the right of Sellers and his personal representative to waive, release or annul restriction or reservation (d) prohibited the right of his personal representatives to authorize a resubdivision of the lots in question. McDermott v. Halliburton, supra; Montgomery v. McNutt, supra; Scheuer v. Britt, supra; Patton on Titles, supra; Thompson, Real Prop., supra.

Carl W. Bear, of Montgomery, for appellee.

In the construction of deeds containing restrictions and prohibitions as to use of property by a grantee, all doubt should, as a general rule, be resolved in favor of a free use of property and against restrictions. Hutchinson v. Ulrich,145 Ill. 336, 34 N.E. 556, 21 L.R.A. 391; Thompson, Real Prop. 473, 475, ?? 3361, 3363; 18 C.J. 386, ? 450; 362, ? 380. The test is the intention of the grantor and his apparent purpose in creating the restriction, and such intention is to be gathered from the entire context. Thompson, Real Prop. 474, ? 3362; Virgin v. Garrett, 233 Ala. 34, 169 So. 711; 18 C.J. 380, ? 362. Purchasers buying real estate subject to a reservation retaining to the grantor or his personal representative the right to waive or release other reservations or restrictions, in effect acquiesce and consent to a subsequent waiver or release. 18 C.J. 397, ? 462; Patton on Titles, 661, ? 192; McKee v. Club-View Heights, 230 Ala. 652, 162 So. 671. Restriction K of the original reservations and restrictions was only limited by the instrument of July 20, 1939, to the extent that the grantor or personal representative could not authorize erection of a house on the lots costing less than $3,000; and consequently the personal representatives have full power and authority to authorize the replatting and resubdividing of the lots in question and the fronting of said lots on either Girard Street or Navarro Avenue. Authorities, supra; Thompson Real Prop. 474, 555, ?? 3362, 3436; 18 C.J. 397, ? 462.

THOMAS, Justice.

The appeal from the decree of the circuit court challenges the construction of written instruments for the platting and conveyance of urban lands.

The evidence is written and there is no presumption of the correctness of the decree of the lower court, and the same will be so considered. McDermott v. Halliburton, 220 Ala. 553,126 So. 854; Montgomery v. McNutt, 214 Ala. 692, 108 So. 752.

It has been decided by this court that if there are violations of the restrictions contained in an urban plat that the right thereunder may be protected and enjoined against such violation. Scheuer v. Britt, 218 Ala. 270, 118 So. 658; Id.,217 Ala. 196, 115 So. 237.

The respective rights of the parties in such premises to enforce building restrictions against another grantee is based on the fact that such scheme constitutes a part of the consideration. Vol. 4, Thompson on Real Property, ?? 3399, 3441; 18 C.J. p. 397, ? 463.

An examination of this pleading, the plats exhibited and the designated and agreed facts show that the question for determination is the construction to be placed on the language of the written instrument of date of July 20, 1939, in which the grantor, John A. Sellers, limited and qualified certain of his rights and those of his personal representatives as to the waiving, releasing or annulling of the restrictions contained in the original plat, and particularly in Section (d) thereof, pertaining to the kind and character of residences to be erected on lands within the plat.

It is admitted that in the interpretation of reservations and restrictions in conveyances and plats that they are to be construed freely within the intent to be given expression thereon. This is necessary to avoid undue hindrance to the free use of the land and real property, and that the intent of the parties in interest may prevail. Virgin v. Garrett, 233 Ala. 34,169 So. 711; McKee v. Club-View Heights, 230 Ala. 652,162 So. 671. In the foregoing decisions the rules that govern in the premises have been fully stated and need not be repeated here.

It is well to observe that in the former instrument by Mr. Sellers of date of May 23, 1939, he expressly reserved all of his rights and those of his personal representatives to waive, release or annul the restrictions contained in the plat and conveyance, except the restriction contained in Section (a).

In the latter instrument of July 20, 1939 the grantor was specifically dealing withPage 441
restriction (d), which applied to minimum cost of buildings to be erected on said lots.

The decree of the circuit court in equity is in exact accord with the rights and expressed intention of the grantor in dealing with the real properties in question and is without error.

The decree of the circuit court is affirmed.

Affirmed.

ANDERSON, C. J., and BROWN and KNIGHT JJ., concur.