Summary
holding waiting more than six years to complain barred plaintiffs' ability to raise issue of failure of condition subsequent
Summary of this case from CONSERVATORSHIP OF EST OF MOOR v. STATEOpinion
No. 36126.
February 11, 1946.
APPEAL AND ERROR.
An appeal would not be dismissed on ground that record was not filed in Supreme Court within six months after rendition of decree and that no citation was served on appellee or counsel within that period, where the appeal bond had been given in full time and the delay had been sufficiently explained to escape the penalty of dismissal.
(In Banc. May 27, 1946.) [26 So.2d 356. No. 36126.]1. DEEDS.
A condition or limitation in deed restricting or limiting to particular uses property conveyed may be waived or abandoned by subsequent conduct of grantor so that court of equity will not interfere to prevent its violations, and complainant seeking equitable relief against violation of such restriction must act with reasonable promptitude upon discovery of ground for complaint.
2. COVENANTS. Injunction.
Where grantor of property restricted to residential purposes did not object to maintenance of tearoom and gift shop for more than six years by grantee's lessee and made no complaint until lessee purchased the property from grantee, grantor was estopped by laches or acquiescence from obtaining injunctive relief.
APPEAL from the chancery court of Harrison county, HON. D.M. RUSSELL, Chancellor.
J.F. Galloway and Gardner Gardner, all of Gulfport, for appellee, on motion to dismiss.
The final decree was rendered in this case in the lower court on June 9, 1945. The appeal bond was filed and approved by appellant on July 6, 1945. The first term of this court, which occurred after the filing of the final decree in the lower court, began on September 10, 1945. No transcript of the record was filed in this court on or before the September term of this Court, and no citation has ever been issued on appellee, returnable to any term of the court. No transcript of the stenographer's notes have yet been filed in this court.
The right to perfect the appeal to this Court expired on December 6, 1945, under the provisions of Section 753 of the Code of 1942, there being no disability involved.
Beasley v. Cottrell, 94 Miss. 253, 47 So. 662; Chambliss v. Wood, 84 Miss. 209, 36 So. 246; Adams Lumber Co. v. Stevenson, 89 Miss. 678, 42 So. 796; Johnson v. Mississippi Power Co., 189 Miss. 67, 196 So. 642; Oswalt v. Austin, 192 Miss. 653, 6 So.2d 924; Mississippi Highway Department v. Meador, 184 Miss. 381, 185 So. 816; Miller v. Phipps et al., 152 Miss. 437, 119 So. 170.
See also McAllister v. Richardson, 101 Miss. 132, 57 So. 547; Code of 1942, Sec. 1955.
Mize, Thompson Mize, of Gulfport, for appellant, on motion to dismiss.
The appeal will not be dismissed where the appealing party has used diligence and faithfully tried to get the appeal in condition for a hearing on its merits and especially so where there is no allegation or indication of damage or prejudice to the appellee and where the record, together with the stenographic notes, is correct. McBee Gossett v. Cahaba Construction Co., 125 Miss. 227, 87 So. 481; Geiselbreth v. Mississippi Power Light Co., 166 Miss. 749, 147 So. 874; Sabougla Drainage District No. 2, v. Peoples Bank Trust Co. of Tupelo, 191 Miss. 331, 1 So.2d 219; Code of 1942, Secs. 1643, 1966.
Mize, Thompson Mize, of Gulfport, for appellant, on the merits.
The opinion of the Supreme Court on the first appeal constitutes the law of the case.
Biles v. Webb, 195 Miss. 369, 15 So.2d 362; Kellogg v. King, 114 Miss. 375, 75 So. 134; Mississippi Power Light Co. v. Pitts, 181 Miss. 344, 179 So. 363; New York Life Ins. Co., v. McIntosh (Miss.), 46 So. 401; Reily v. Crymes, 176 Miss. 133, 168 So. 267; Kilpatrick v. Twin States Realty Co., 193 Miss. 599, 10 So.2d 447.
The evidence shows a breach of the restrictive covenants prohibiting the use of the property for commercial purposes.
Green v. Weller, 32 Miss. 650; Koch Dryfus v. Bridges, 45 Miss. 247; Pitts v. City of Vicksburg, 72 Miss. 181, 16 So. 418; State ex rel. Hairston v. Baggett, 145 Miss. 142, 110 So. 240; Warburton-Beacham Supply Co. v. City of Jackson, 151 Miss. 503, 118 So. 606; Yerger v. State, 91 Miss. 802, 45 So. 849; Folkes v. State, 63 Miss. 81, 40 Words Phrases (Perm. Ed.) 219; Boston Loan Co. v. City of Boston, 137 Mass. 332, 40 Words Phrases (Perm. Ed.) 221; Montgomery Ward Co. v. State, 169 S.W.2d 997.
A tenant of the servient estate cannot invoke the statute of limitations and laches against the dominant land owner.
Cummings v. Kilpatrick, 23 Miss. 106; Alcorn v. Sadler, 71 Miss. 634, 14 So. 444, 42 Am. St. Rep. 484; Frazer v. Robinson, 42 Miss. 121; Frederic v. Mayers, 89 Miss. 127, 43 So. 677; Gibson v. Jayne, 37 Miss. 164; Griffin v. Sheffield, 38 Miss. 359, 77 Am. Dec. 646; Lucas v. New Hebron Bank, 181 Miss. 762, 180 So. 611; Sample v. Romine, 193 Miss. 706, 8 So.2d 257; Simpson v. Ricketts, 185 Miss. 280, 186 So. 318; Wilson v. Peacock, 111 Miss. 116, 71 So. 296; Wilson v. Stevens, 105 N.Y. Equity 377, 148 A. 392; Code of 1942, Sec. 711.
The appellant is not charged with estoppel.
Hopkins v. Hopkins, 174 Miss. 643, 165 So. 414; Moore v. Stevens, 90 Fla. 879, 106 So. 901, 43 A.L.R. 1127; Alderson v. Cutting, 163 Cal. 503, 126 P. 157; Brown v. Hojnacki, 270 Mich. 557, 259 N.W. 152, 97 A.L.R. 624; Brown v. Huber, 80 Ohio St. 183, 88 N.E. 322, 28 L.R.A. (N.S.) 705; Lattiner v. Livermore, 72 N.Y. 174; Merrymount Co. v. Edwardes (Mass.), 160 N.E. 821, 57 A.L.R. 409; Morrow v. Hasselman, 69 N.Y. Equity 617, 61 A. 369; Sayles v. Hall, 210 Mass. 281, 96 N.E. 712, 41 L.R.A. (N.S.) 625, Ann. Cas 1912d 475; Schadt v. Brill, 173 Mich. 647, 139 N.W. 878, 45 L.R.A. (N.S.) 726; 26 C.J.S. 566, Sec. 169.
J.F. Galloway, Gardner Gardner, and Oscar Backstrom, all of Gulfport, for appellee, on the merits.
The chancellor held that appellee had not breached the covenant against use of her property for commercial purposes. This ruling is correct, but if there was a breach it was merely technical, inconsequential, and imterial and not cognizable in a court of equity.
26 C.J.S. 574; 18 C.J. 399.
Appellant's right of action, if any, is barred by the six year statute of limitations.
Schultz v. Cities Service Oil Co., 148 Kan. 148, 96 P.2d 533; Pioneer Coal Co. v. Asher, 210 Ky. 498, 276 S.W. 487; Bank v. Otero, 24 N.M. 598, 175 P. 781; Pearson v. Richards, 106 Or. 78, 211 P. 167, 171; Gallison v. Downing, 244 Mass. 33, 138 N.E. 315; Beacher v. Tinnin, 28 N.M. 59, 189 P. 44; Planter v. Vincent, 187 Cal. 443, 202 P. 655; De Long v. Spring Lake Beach Improvement Co., 74 N.J.L. 250, 66 A. 591; Dickenson v. Hoomas, 8 Gratt (49 Va.) 353; Lewis v. Cook, 35 N.C. 193; McConaughey v. Bennett, 50 W. Va. 172, 40 S.E. 540; Peters v. Bowman, 25 L.Ed. 91; 21 C.J.S. 933; 15 C.J. 1253, notes 6, 9.
Appellant is barred by its own breaches of the restrictive covenants imposed on Beach Hurst Addition.
New Orleans N.E.R. Co. v. Poplarville Sawmill Co., 132 Miss. 757, 96 So. 467; Clark v. Till, 177 Miss. 891, 172 So. 133; Lowery v. May (Ala.), 104 So. 5; Zambetti v. Commodores Land Co. (Fla.), 136 So. 644; Sun City Holding Co. v. Schoenfeld (Fla.), 122 So. 252; Dillingham v. Kahn (Ark.), 67 S.W.2d 735; Moore v. Adams (Ark.), 141 S.W.2d 46; Scharer v. Pantler, 127 Mo. App. 433, 105 S.W.2d 668; Duncan v. Central Passenger R. Co., 85 Ky. 525; Southern Colonization Co. v. Derfer (Fla.), 75 So. 790; Santa Barbara Estates v. Couch, 123 So. 857; Contanzano v. Hydinger (Ala.), 170 So. 214; 21 C.J.S. 899, 900.
Appellant is barred and estopped to maintain this suit by its conduct, laches, acquiescence, and silence when under obligation to speak.
Fidelity Deposit Co. v. Doughtry, 181 Miss. 586, 179 So. 846; Mississippi Rural Rehabilitation Corporation v. Ethridge (Miss.), 177 So. 527; Chase v. Chase, 20 R.I. 203, 37 A. 804; Mahoning Investment Co. v. United States, 3 F. Supp. 362; Scharer v. Pantler, supra; Duncan v. Central Passenger R. Co., supra; Starck v. Foney, 272 S.W. 890, 41 A.L.R. 736; Noel v. Hill, 158 Mo. App. 426, 138 S.W. 364; Tubbs v. Essler, 26 Times L R. (Eng.) 145; Loud v. Pendergast, 206 Mass. 122, 92 N.E. 40; Star Brewery Co. v. Primas, 163 Ill. 652, 45 N.E. 145; 31 C.J.S. 362.
The former appeal settled only that the restrictive covenants are valid It did not preclude appellee from pleading or proving estoppel, laches, limitations or other defenses.
H. C. Newman, Inc., v. Delta Grocery Cotton Co., 138 Miss. 683, 103 So. 373, 104 So. 157, 144 Miss. 877, 110 So. 686; Travellers' Ins. Co. v. Inman, 167 Miss. 288, 138 So. 339; Brewer v. Browning, 115 Miss. 358, 76 So. 267; True-Hixon Lumber Co. v. Thorn, 171 Miss. 783, 158 So. 909; Jefferson Davis County v. Berry, 152 Miss. 578, 120 So. 572; Maxwell v. Harkleroad, 77 Miss. 456, 27 So. 990; Perpall v. Gload, 196 N.Y.S. 946, 203 App. Div. 871, 190 N.Y.S. 417, 116 Misc. 571; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697; Strauss v. J.C. Nichols Land Co., 327 Mo. 205, 37 S.W.2d 505; Sockett v. Los Angeles City School District of Los Angeles County, 118 Cal.App. 254; Davis v. Robinson, 189 N.C. 539, 127 S.E. 697; 26 C.J.S. 508, 566.
The restrictive covenants were not imposed for the sole benefit of appellant.
Moore v. Stevens, 90 Fla. 879, 106 So. 901, 43 A.L.R. 1127; Merrymount Co. v. Edwardes (Mass.), 160 N.E. 821, 57 A.L.R. 409; Brown v. Hojnacki, 270 Mich. 557, 259 N.W. 152, 97 A.L.R. 624.
Motion has been made to dismiss the appeal on the grounds (1) that the record was not filed in this Court within six months after the rendition of the decree, and 2d no citation was served on appellee or her counsel within that period. Both these grounds were considered in Farrish v. Davis, 124 Miss. 711, 86 So. 713, and held not to be good, in view of the fact that the appeal bond had been given in fulltime. The delay has been explained to the extent that, if not entirely satisfactory, has shown enough to escape the penalty of a dismissal.
Motion to dismiss overruled.
Appellee is the owner of three lots and the residence situated thereon in Beach Hurst, an addition to the City of Pass Christian. The deeds to her and to her predecessor in title contained a restriction that the lots should be used solely for residence purposes, and never for commercial purposes of any character whatever. Appellant, the original owner of all the property, and the owner yet of a few of the lots unsold, filed its bill against appellee charging her with operating a store on her lots and seeking an injunction aaginst the continued use for that purpose. Appellee demurred, and her demurrer having been overruled, an interlocutory appeal was allowed, and on consideration thereof the decree was affirmed and the cause remanded. Kilpatrick v. Twin States Realty Co., Inc., 193 Miss. 599, 10 So.2d 447.
On the return of the case appellee answered fully and made her answer in such terms as to allow proof in her behalf of the following facts:
On November 1, 1934, the lots in question were owned by W.C. Keenan, who on that date leased the property to appellee. It was appellee's purpose in renting the property to use it not only as a home for herself and family but also to put one of the main rooms of the residence to use as a tea room and gift shop. She did not know at the time she made the lease that there were any restrictions upon such use, and when she moved into the residence, which was immediately following said date, she arranged the selected room as a sales room for antiques, and for novelties designed primarily for gift purposes, in addition to which she operated a tea shop, and in connection with both these objects she made her place a sort of cultural center where she had book reviews and lectures. There was no outward change in the residence as it had existed, and all the activities mentioned were conducted on the inside, and as to outward appearances there was but little or no indication of anything different from the ordinary residence of that size and character.
At about the time that appellee embarked upon the enterprise as above described, she proceeded to erect one or more display signs pointing to the place and its purposes, whereupon appellant's agent, who, throughout all the times herein mentioned, resided near the property, called appellee's attention to the fact that the property was restricted as aforesaid, and objection was made to the signs, but the testimony is to the effect that no objection otherwise was then made to what appellee was doing and none other was made for more than six years, as hereinafter further mentioned, although appellee continued throughout the entire period to use the property in substantially the same manner.
Appellee removed the signs, but patronage found its way to her place and her efforts met with a success which justified her in the purchase of the property from Keenan, which purchase was made on November 29, 1940. Up to the time of her purchase, and for the six years which had elapsed there had been no complaint about appellee's continued activities from any of the other owners of lots in the addition, as well as none from appellant; but in a few months after her purchase appellant did begin to complain and finally in August 1941 filed its bill of complaint, as already mentioned.
Upon a full hearing the chancellor dismissed the bill, making his written opinion a part of the decree. He based his action upon several different grounds, as we understand it, but we think the decree is so well sustained on the ground of estoppel by laches or acquiescence that none other need be mentioned. It is well settled that "a condition or limitation in a deed restricting or limiting to particular uses the property conveyed may be waived or abandoned by the subsequent conduct of the grantor so that a court of equity will not interfere to prevent its violations," from which it follows that a complainant seeking equitable relief against the violation of such a restriction must act with reasonable promptitude upon the discovery of the ground for complaint, as otherwise his laches may bar his right to relief.
No better statement of the rule or summary as applicable to restrictive covenants has been made than that by Rugg, J., in Stewart v. Finkelstone, 206 Mass. 28, 92 N.E. 37, 39, 28 L.R.A. (N.S.), 634 636, 138 Am. St. Rep. 370, from which we quote:
"There is no hard and fast rule as to what constitutes laches. If there has been unreasonable delay in asserting claims or if, knowing his rights, a party does not seasonably avail himself of means at hand for their enforcement, but suffers his adversary to incur expense or enter into obligations or otherwise change his position, or in any way by inaction lulls suspicion of his demands to the harm of the other, or if there has been actual or passive acquiescence in the performance of the act complained of, then equity will ordinarily refuse her aid for the establishment of an admitted right, especially if an injunction is asked. It would be contrary to equity and good conscience to enforce such rights when a defendant has been led to suppose by the word [or silence, or conduct] of the plaintiff that there was no objection to his operations. Diligence is an essential prerequisite to equitable relief of this nature. Quiescence will be a bar when good faith requires vigilance. But so long as there is no knowledge of the wrong committed, and no refusal to embrace opportunity to ascertain facts, there can be no laches. Upon the discovery of infringement of rights, such reasonable expedition is required in their prompt assertion as is consistent with due deliberation as to the proper means for relief. On the other hand, one who openly defies known rights, in the absence of anything to mislead him or to indicate assent or abandonment of intent to oppose on the part of others, is not in a position to urge as a bar failure to take the most instant conceivable resort to the courts. After the right has been invaded under circumstances, which would not defeat a plaintiff in seeking relief, and no substantial harm is shown to have accrued to the wrongdoer from delay, there is not the same imminent necessity for early enforcement of demands as exists before conditions have become fixed. Mere lapse of time although an important is not necessarily a decisive consideration. Within the somewhat flexible limitations of these general rules, what may be laches, in any case depends upon its peculiar facts."
Looking to the stated rules and to the facts as sustained by the evidence, we think it was too late, after waiting more than six years and until appellee had invested her money in the purchase of the property, for appellant to complain, so far as any relief in equity in concerned. Considerably less time than this has been deemed sufficient as a bar in several cases in point, some of which may be found in the reporter's abstracts of the briefs, and to these we add Bigham v. Winnick, 288 Mich. 620, 286 N.W. 102, and see 2 High on Injunctions, 4th Ed., Sec. 1159.
Affirmed.
PARTIALLY DISSENTING OPINION.
I seriously doubt the correctness of the decision in this case. The restriction on the appellee's use of this property for commercial purposes does not rest alone on the restriction therefrom contained in the deeds of her predecessors in title held valid on the former appeal herein, Kilpatrick v. Twin States Realty Company, 193 Miss. 599, 10 So.2d 447, but rests, also, on the covenant not to so use the property, into which she herself entered when she accepted her deed thereto containing this restriction, which inured to the benefit of the appellant, as will appear by necessary implication from Kilpatrick v. Twin States Realty Co., supra. After accepting this deed, and becoming a party herself to this covenant, it would seem that she should not now be permitted to say that although she agreed not to use the property for commercial purposes when she accepted her deed thereto, that she did not then intend, and is under no obligation, to observe it.