finding restriction unambiguous and holding that restrictive covenants could not be amended prior to end of 25-year period by an agreement signed by more than one-half of property owners in subdivision
How later courts described this case
- finding restriction unambiguous and holding that restrictive covenants could not be amended prior to end of 25-year period by an agreement signed by more than one-half of property owners in subdivision
- holding that the restrictive covenants could not be amended prior to the expiration of the initial 25-year period
Written by the judges who cited it.
The opinion
John A. Fogleman, Justice, dissenting. I might readily agree with the construction given the bill of assurance by the chancery court and the majority if the last paragraph quoted stood alone. Since it does not, I cannot. Reading the introductory paragraph leads me to only one conclusion, i.e., that the restrictions and covenants can be amended by a majority within the initial 25-year period as well as thereafter. If this were not the intent the words “subject to being amended or cancelled as provided hereinafter” in the first paragraph would have been omitted and the bill would then have the exact meaning ascribed to it by the majority. But we are not at liberty to read words out of the instrument and should recognize that there was some purpose for inserting them. It should be noted that the first paragraph does not say, as it might if the majority’s construction is correct, that the restrictions and covenants shall be and remain in full force and effect for 25 years and thereafter be subject to change.
It seems to me that the word “as” is used in the conjunctive sense, that is, meaning in the same way or manner. Thus the introductory clause should be read as follows:
All of the land described herein and any interest therein shall be held and owned subject to and in conformity with the following restrictions and covenants which, subject to being amended or can-celled in the same manner provided hereinafter, shall be and remain in full force and effect for 25 years***.
Thus, the only restriction on the change relates to the manner in which it is to be accomplished and imposes no limitation on time. The manner provided is by an instrument signed by a majority of the owners of the lots.
I would reverse the decree.