“[R]estrictive covenants are strictly construed against those who assert the power to limit the homeowner’s free use of his land.”
How later courts described this case
- “[R]estrictive covenants are strictly construed against those who assert the power to limit the homeowner’s free use of his land.”
- "The expressed intent of the parties is the controlling factor. Intent unexpressed will be unavailing, and substantial ambiguity or doubt must be resolved against the person claiming the right to enforce the covenant"
- “Due regard must be had for the purpose contemplated by the parties to the covenant, and words used must be given their ordinary, obvious meaning as commonly understood at the time the instrument containing the covenants was executed.”
- “ '[0]nly' ... is synonymous with the word ’solely,’ or the equivalent of the phrase ‘and nothing else.' ”
Written by the judges who cited it.
The opinion
Buford, J.,
Dissenting:
I concur in the dissenting opinion by Mr. Justice ELLIS, but wish to add the following observations to what he has so ably stated:
The decree in this ease is based entirely on the construction and meaning to be given to the language used in a restrictive covenant contained, either actually or by reference, in the conveyances under which the appellant holds title, which covenant is quoted in the majority opinion. •
My view is that the proper and reasonable construction to be placed upon the language used in this covenant is that it means:
1st. That only residences with needful servants’ houses and outhouses shall be erected on the lot.
2nd. That no residence costing less than $3,000.00 shall be so erected and not more than one residence shall be erected on the lot. There is no other limitation upon the style, size or construction of the proposed residence.
3rd. That the residence shall be located not less than twenty feet from the lot line (we assume this refers to the front line).
In so far as the record discloses each of these conditions have been fully complied with'by the appellant.
There appears to have been no feature of his building the construction of which could have been prohibited by invoking the conditions of the covenant.
Then there is in the covenant a prohibition against the “use of the property conveyed’’ for certain purposes and in certain manners.
1st. No liquor or ardent spirits shall be sold on the premises.
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2nd. The property shall not be rented, sold or otherwise disposed of to persons of African descent.
3rd. That no use shall be made of the property which use shall constitute a nuisance (that is a use which shall constitute what is recognized in law as a nuisance).
4th. That no use shall be made of the property which will injure the value of any neighboring lot.'
There is no proper showing in the record that the property conveyed or that the residence erected thereon has been used, rented, sold or conveyed in violation of either of these conditions.
The use of the residence as a place for conducting the teaching of music of all kinds is not unusual, but on the other hand is a common practice amongst all classes of people. The charm and refining influence of music is appreciated by every one. To hold the teaching of music to be a nuisance would be most absurd. This is the only use of the premises complained of. This use is entirely compatible with using the property for residence purposes.
I find no violation of the restrictive covenants.