Summary
In Shaeffer v. Gatling, 243 Miss. 155, 137 So. 819 (1962), we set out the rule to be followed in construing restrictive covenants.
Summary of this case from Kemp v. Lake Serene Property Owners Ass'n, Inc.Opinion
No. 42169.
February 19, 1962.
1. Covenants — restrictive deed covenants — fairly and reasonably construed.
Restrictive deed covenants should be fairly and reasonably construed, and language read in ordinary sense.
2. Covenants — restrictive deed covenant as not prohibiting use of house trailer as residence on lot.
Deed covenant requiring that property be used strictly for residential purposes, and that residences cost more than $6,000 and be set back 35 feet, did not prohibit use of house trailer as residence on lot.
Headnotes as approved by Gillespie, J.
APPEAL from the Chancery Court of Warren County; S.B. THOMAS, Chancellor.
Prewitt Bullard, Vicksburg, for appellants.
I. A trailer, erected on a permanent foundation and connected permanently with utilities, is a residence. Aetna Life Inc. Co. v. Aird, 108 F.2d 136; Bear v. Bernstein, 251 Ala. 230, 36 So.2d 483; Briggs v. Hendricks, 197 S.W.2d 511; Broeder v. Sucher Bros., Inc., 331 Mich. 323, 49 N.W.2d 314; Carr v. Trivett, 24 Tenn. App. 308, 143 S.W.2d 900; City of Sioux Falls v. Cleveland, 75 S.D. 548, 70 N.W.2d 62; Corning v. Town of Ontario, 121 N.Y.S.2d 288; Foos v. Engle, 295 Ky. 114, 174 S.W.2d 5; Fortesque v. Carroll, 76 N.J. Eq. 583, 75 A. 923; Frederick v. Merchants Marine Bank, 200 Miss. 755, 28 So.2d 843; In re Willey, 120 Vt. 359, 140 A.2d 11; J L Realty Co. v. Wood, 46 N.E.2d 832; Jernigan v. Capps, 187 Va. 73, 45 S.E.2d 886, 175 A.L.R. 1182; Kimsey v. City of Rome, 84 Ga. App. 671, 67 S.E.2d 206; Latchis v. John, 117 Vt. 110, 85 A.2d 575; Lescault v. Zoning Board of Review of the Town of Cumberland (R.I.) 162 A.2d 807; Moore v. Stevens (Fla.), 106 So. 901; Starmount Co. v. Greensboro Memorial Park, 233 N.C. 613, 65 S.E.2d 134; Virgin v. Garrett, 233 Ala. 34, 169 So. 711; 14 Am. Jur., Covenants, Conditions Agreements, p. 621.
II. The covenants were extinguished by merger. Brown v. Metz, 33 Ill. 399, 85 Am. Dec. 277; Craven Co. v. First Cit. Bank, 237 N.C. 502, 75 S.E.2d 620; Hull v. Kraft (Texas), 286 S.W.2d 460; Murphy v. Green (Fla.), 153 So. 531; Muscoze Mfg. Co. v. Eagle P. Mills, 136 Ga. 210, 54 S.E. 1028; Tudor v. Jaca, 178 Oregon 126, 165 P.2d 770.
Oscar P. LaBarre, Vicksburg, for appellee.
I. A Magnolia Mobile Home, or house trailer, parked on a lot in a residential subdivision which was subject to restrictions and covenants that run with the land and state that the property is to be used strictly for residential purposes, violates the covenants and restrictions imposed. City of Gulfport v. Daniels, 231 Miss. 599, 97 So.2d 218; City of New Orleans v. Louviere (La. App.), 52 So.2d 751; Foos v. Engle, 295 Ky. 114, 174 S.W.2d 5; Mendrop v. Harrell, 233 Miss. 679, 103 So.2d 418; Moore v. Stevens, 90 Fla. 879, 106 So. 901; W.L. Holcomb, Inc. v. City of Clarksdale, 217 Miss. 892, 65 So.2d 281; 14 Am. Jur., Covenants, Conditions and Restrictions, Sec. 211; 17 Am. Jur., Domicil, Sec. 24.
II. Covenants when created in residential subdivision that plainly stated same were to run with the land, for a period of 25 years, subsequent reconveyance did not merge estate and extinguish covenants. Mendrop v. Harrell, supra; 7 Thompson, Real Property, Secs. 3614, 3616.
III. The necessary and proper parties to enforce the covenants are before this Court. Cantieny v. Boze, 209 Minn. 407, 296 N.W. 491; Carter v. Pace, 227 Miss. 488, 86 So.2d 360; Osius v. Barton, 109 Fla. 556, 147 So. 862; 14 Am. Jur., Covenants, Conditions and Restrictions, Sec. 311.
James B. Schaeffer and his wife, defendants below and appellants here, acquired title on January 10, 1958, to Lots 7, 8 and 9, Dabney's Residential Subdivision located just outside the City of Vicksburg. The plat of said subdivision shows 27 lots, and at the time of trial about 12 residences had been constructed by the various owners of said lots. The subdivision was established in 1948 when the plat thereof was filed and when the original owner conveyed Lots 7, 8 and 9 to appellants' predecessors in title, the deeds contained the following restrictive covenants:
"AS PART of the consideration for the sale of said property to the vendee herein, the said vendee agrees that he will observe the following restrictions and covenants which are to run with the land:
"Said property is to be used strictly for residential purposes and is not to be used for automobile filling station, repair shop, tourist camp, bill boards, dance hall, store or for any other commercial or manufacturing purposes. No residences shall be erected on said land which shall cost less than $6,000.00, exclusive of outhouses or other buildings in connection with said residence, and the front of said residence, exclusive of any gallery or porch that may be attached to said building, shall be set back from the front, or Highway 61 line of said lot, not less than thirty-five (35) feet; nor is said lot, land or residence to be occupied by or sold to any persons other than members of the Caucasian race. These restrictions are to be binding for a period of twenty-five years."
After appellants purchased said lots they constructed a home on Lots 7 and 8 and have since lived thereon. During December 1960, appellants purchased for more than $6,000 a 55-foot Magnolia Mobile Home, commonly known as a house trailer, and moved it on Lot 9 adjacent to their home. Sewer, water and electrical installations were connected to the house trailer which contained three bedrooms and one and a half baths. The trailer was set back thirty-five feet from the front of the lot. After the house trailer was thus placed on said Lot 9 and established on concrete piers with the wheels of the trailer remaining thereon, the daughter and son-in-law and two grandchildren of appellants moved into the house trailer and have since made their home therein.
A number of the owners of other residences in said subdivision objected to said house trailer being placed upon Lot 9 and instituted this suit seeking a mandatory injunction requiring appellants to remove said house trailer from Lot 9. The lower court entered a decree requiring appellants to remove said house trailer within thirty days, and from that decree appellants perfected appeal to this Court.
The question is whether the use of said house trailer as a residence was prohibited by the restrictive covenants.
The house trailer is being used "strictly for residential purposes." The property is not being used for an automobile filling station, repair shop, tourist camp, bill boards, dance hall, store or any other commercial or manufacturing purpose. No prohibited use was shown. (Hn 1) Covenants of this kind should be fairly and reasonably construed and the language used will be read in the ordinary sense. Cf. Mandrop v. Harrell, 233 Miss. 679, 103 So.2d 418. The entire instrument should be considered in ascertaining its meaning, but the restriction should not be extended by strained construction, especially when, as in this case, the restrictive covenants expressly permit the use being made of the land. (Hn 2) If the original owner of the subdivision had desired to prohibit the use of house trailers as residences, this could easily have been accomplished by designating house trailers as prohibited use, or by restricting architectural design, or by placing a minimum on the floor space for a residence, or by prohibiting temporary residences. None of these things were done.
In our opinion, there was no violation shown and the decree of the lower court should be and is reversed and judgment entered here for appellants.
Reversed and judgment here for appellants. McGehee, C.J., and Kyle, Arrington, and Ethridge, JJ., concur.