#### The Cleveland Baptist Assn. et al. *v.*Scovil et al.

*Covenants*— Deeds—Building *restriction*— Private *residences only*— Church *edifice prohibited*— Restrictions *inserted in foreclosure decree*— Purchaser *at sheriff’s sale bound, when.*

1. A realty company made an allotment of a large number of lots, upon which it gave a blanket mortgage. Some of the lots were sold to purchasers by deeds containing various restrictions. Later, the mortgagor defaulted, and foreclosure proceedings were instituted wherein the mortgagor and owners of the lots previously sold were made parties. The mortgagor and the mortgagee and all of the parties, except a few who were in default for answer, joined in a consent decree ordering the sale of the remaining lots with various restrictive covenants as to building erections. Plaintiff in error’s predecessor in title purchased one of these lots at sheriff’s sale and accepted a deed incorporating the restriction hereinafter named, and thereafter conveyed the premises to plaintiff in error by a deed embodying the same restriction. All other purchasers at judicial sale who .have improved their lots complied with the restrictions imposed by said decree.

*Held:*The purchaser at sheriff’s sale and his successor in title, both of whom received deeds embodying the restriction, are estopped from questioning the validity of the restrictions contained in their respective deeds.

2. The decree and deeds executed in pursuance thereof contained the following restriction applicable to one of the lots: “Until January 1, 1934, said premises shall not be used for apartment or boarding house purposes, but shall be used for private residences only, including necessary out-buildings, garage and barn.” This restriction is not doubtful in import and prohibits the.erection of a church edifice on the lot.

(No. 17389

Decided February 13, 1923.)

Error to the Court of Appeals of Cuyahoga conn-

*68Many years ago the Enclid Heights Realty Company made an allotment of farm lands located in what is now known as the city of Cleveland Heights. The company then encumbered the allotment by a blanket mortgage. As the several lots in the allotment were sold to purchasers, deeds were executed to them containing various building restrictions, and the lots so sold were released from the blanket mortgage, the purchasers improving their several lots under the restrictions imposed by their respective deeds. This was done in pursuance of a general scheme for the development of the allotment, but the scheme was not uniform in requiring similar restrictions in lots deeded from time to time, as they were sold to purchasers. This continued until the mortgagor realty company defaulted in its mortgage. .Foreclosure proceedings were commenced by the mortgagee on January 4, 1912, at which time a large number of lots remained unsold. A decree of foreclosure was entered on August 7, 1912. Part of the lots having been thereafter sold and improved under restrictions aforesaid, contention arose as to whether the remaining lots should be sold on judicial sale free of or subject to restrictions. The lot owners who had purchased were made parties and were served with summons or entered their appearance. Twenty-three remained in default for answer and took no part in the proceedings, nor did they approve or disapprove of a modified decree which was made on February 6, 1914, which undertook to impose restrictions on the lots to be sold under the judicial decree. The journal entry of that date recited that all of the parties who filed pleadings had consented that the remaining lots *69should be sold incorporating the restrictions imposed in the decree of February 6, 1914, which decree recited that the restrictions should go with the land and were to be binding upon the purchasers, their heirs, successors and assigns, and that they were for the benefit of all persons who might become owners of the property ordered to be sold.

Lot 176 involved in this controversy was subsequently sold and conveyed to one Philip A. Sampliner by a deed which contained the following restriction, being the same restriction incorporated in the decree, to-wit: “1. Until January 1, 1934, said premises shall not be used for apartment or boarding house purposes, *but shall be used for private residences only,*including necessary out-buildings, garage and barn.” On October 22, 1920, Sampliner conveyed Lot No. 176 to the Baptist Association by a deed containing a provision that the conveyance was subject to the same restrictions and limitations contained in the deed from the sheriff to Sampliner.

The court of appeals found that the owners who bought lots under the decree had adhered to the restrictions imposed by the consent decree of February 6,1914, which were not uniformly imposed upon all the lots to be sold. The Baptist Association, the plaintiff in error, proceeding to erect a church building on Lot 176, the defendants in error, being twenty-one owners of lots in the allotment, brought an action in the common pleas court to enjoin the construction of the church building. The case was appealed to the court of appeals, which made separate findings of fact and conclusions of law and granted the injunctive relief ashed, whereupon error was prosecuted here.

*70*Messrs. Griswold, Green, Palmer & Madden,*for plaintiffs in error.

*Messrs. Dustin, McKeehcm, Merrick,. Arter & Stewart*and *Mr. G. M. Morn,*for defendants in error.

Jones, J.

It is argued that the decree incorporating the restrictions is void, and that its invalidity inures to the purchasers of lots thereunder. Since the mortgagor and mortgagee, the parties directly interested, agreed to the court’s decree, and all other parties were either in default or consented thereto, it is difficult to see how a purchaser thereunder could avail himself of such invalidity, if any existed. The court had before it all the parties interested, jurisdiction of the subject-matter of the suit, and, if all parties consented and a sale with such restrictions was beneficial to them, I am unable to perceive why the court could not impose valid restrictions upon the lots ordered to be sold. Upon that feature I only express my own opinion. Decision of the point raised is not necessary for the determination of this case, since the record discloses a clear case of estoppel against those who purchased lots under the decree. The decree was consented to by the parties interested in the unsold allotment. Sampliner, the predecessor in title, agreed to the decree imposing the restrictions upon the unsold lots by his acceptance of the sheriff’s deed which incorporated it, others purchasing- lots were likewise affected, and they, under the findings of the court, improved their lots upon the faith of the restriction scheme adopted in the decree. The sheriff’s deed was accepted by all, including Samp*71liner, with the limitations therein contained. Sampliner’s grantee, the Baptist Association, plaintiff in error here, not only stands in his privity of estate, bnt actually accepted the deed from him with the same restriction included therein. It also protected itself by a covenant in the deed that if the erection of a church edifice should be enjoined the grantor should restore to it the purchase price at the option of the grantee. Clearly the facts disclosed create an estoppel binding Sampliner and his successor in title.

It is however contended that even if it be conceded that the decree is not void, and that such purchasers as are covered thereby are estopped, the restrictions imposed do not prohibit the construction of a church edifice. The common pleas court took that view, but the court of appeals held otherwise and enjoined the construction. The restriction relied on is as follows: “Until January 1,1934, said premises shall not be used for apartment or boarding house purposes, but shall be used for private residences only, including necessary out-buildings, garage and bam.”

We fully agree with the principles announced in the restriction cases *Hunt*v. *Held,*90 Ohio St., 280, and *Hitz*v. *Flower,*104 Ohio St., 47, that restrictions in deeds must be construed in favor of the free use of the real estate, and that if doubtftil meaning attaches thereto the doubt must be resolved against the restriction. But no such doubts can arise as to the import of the words used here. It is true that “apartment or boarding houses” are specifically prohibited. But the restriction goes farther — it also expressly provides that the premises sold ‘ ‘ shall be used for private residences only,” including out*72buildings, garage and barn. This language is clear and not doubtful in meaning. It specifically confines tbe use of tbe premises to private *residences only,*whicb necessarily excludes other structures, such as factories, business houses or churches, either of which might be erected if our view be unsound. Any other construction would require this court to write into the restriction a restrictive covenant varying its express terms. A question similar to this arose in *St. Andrew’s Luther cm Church’s Appeal, 67*Pa. St., 512, decided by Justice Sharswood of the supreme court of Pennsylvania. There the restriction provided that none of the lots should “be used for purposes other than a dwelling-house, office, privy, coach-house or stable.” It was held that “the erection of a church on one of the lots is prohibited by the covenant.” Berry on Restrictions on Use of Real Property, page 161.

The judgment of the court of appeals is affirmed.

*Judgment affirmed.*

Robinson, Matthias, Day and Allen, JJ., concur.