#### GOODMAN v. BINGLE.

No. 9645.

Court of Civil Appeals of Texas. Galveston.

Feb. 9, 1932.

Sam W. Levy, of Houston, for plaintiff in error.

Stevens & Stevens, of Houston, for defendant in error.

GRAVES, J.

The litigants own directly opposite properties fronting on “Heights Boulevard,” at Sixteenth street in Houston; Mr. Goodman’s being the southwest corner of that intersection and Mr. Bingle’s the southeast one. Their respective titles came down through mesne conveyances under a common source, the Omaha & South Texas Land Company, a corporation, the deeds from which, in both instances, containing this restriction: “This deed is made and acceptei with the express understanding and agreement that no residence building shall be erected or any property fronting on the Boulevard in said Houston Heights costing less than twenty five hundred dollars that no building shall be erected or used for business purposes of any kind or description on any lot or abutting on said Boulevard and that all residence buildings on each lot of lots shall be set back at least forty feet from the front block line on said Boulevard and that no fence of any description shall be erected or maintained within a distance of forty feet of the front block line of said Boulevard lots and that a failure to comply with any one of these conditions shall operate as a forfeiture of this deed and all rights of the grantee his heirs and assigns and legal representatives thereunder and that the title to the land described herein in such event shall immediately be reinvested by force of this deed in the Omaha and South Texas Land Company, in fee simple without necessity for other further proceedings.”

On the application of Mr. Bingle, the trial court perpetually enjoined Mr. Goodman from erecting and maintaining on his lots an oil, gas, and service station; on appeal of the latter therefrom, this court reverses that decree, and, in lieu of it, enters judgment that the cause be rendered in his favor, mainly on these considerations:

Neither the plat nor the deed of dedication of the Heights addition, of which the boulevard here involved was the main thoroughfare, originally promulgated and put of record by the land company contained or referred to any restrictions, nor was there other record evidence showing restrictions in deeds to other lots on the boulevard; the land company in January of 1897, years before either of these litigants acquired Lis *433property, conveyed all tie lots and improvements it tien owned in tie addition, “and all tie lots, parts of lots, and parcels of land, togetier witi tie improvements tiereon, tiat may iereafter revert to or in anywise become tie property of tie said Omaia & Souti Texas Land Company,” to Carroll M. Carter, wio, in turn, on November 18, of 1901, released of record tie restrictions so at first retained by tie former against tiis property' tiat in 1919 became Mr. Bingle’s, that is, lot 24 and 1⁄8 of lot 23, block 140 of -tie Heights addition, which, as above stated, lay directly across tie boulevard from Mr. Goodman’s corner. Mr. Bingle was not only not a party to tie restrictive provision in tie deed from tie land company, conveying tie lots on tie opposite side tiat Mr. Goodman now owns to one of his remote predecessors in title, but also, when he came to purchase his own property across tie boulevard in 1919, he wa3 charged witi record knowledge of tie fact that there were tien no restrictions on it, and had not been for 18 years. Tie cause is not ruled by Green v. Gerner (Tex. Civ. App.) 27 S.W.(2d) 828, upon which tie defendant in error relies, because:

> (1) Tie quoted covenant here did not by its terms purport to run in favor of other grantees of vicinal lots under tie Omaia & Souti Texas Land Company, but plainly evidenced tie intention to reserve to tie grantor itself merely an individual privilege applicable only to particular lots conveyed by deed expressly incorporating it.

> (2) Tie evidence does not disclose any such general scheme or plan in tie laying out, selling of lots in, and maintenance of, tie addition as would entitle one subsequent owner of lots therein to enjoin another from violating tiis restrictive covenant tiat so appeared in tie respective deeds from their remote common grantor down under which they severally claimed.

As indicated, the language of tiis restriction appeared alike only once in tie respective chains of title of these parties, tiat is, in tie deeds from tie land company conveying their several properties to their remote grantors, there being no restrictions in tie immediate deeds to either of them; it imports a condition subsequent, enforceable by tie land company alone, as tie explicitly recited penalty for tie breach thereof itself makes manifest — the forfeiture of tie grantee’s rights, and “that tie title to the land described herein in such event shall immediately be reinvested by force of this deed in tie Omaia and Souti Texas Land Company, in fee simple without necessity for other further proceedings.” There are in it, furthermore, neither specific provisions investing other lot owners witi the enforcement of what was thus reserved as a distinctly individual right in tie original grantor, nor declaring tiat tie burdens imposed in tie par-tieular deeds are either part and parcel of a general plan to restrict tie entire Heights boulevard, or are intended for tie benefit of other vicinal owners therein; it must therefore be construed as was a similar restriction in Pierson v. Canfield (Tex. Civ. App.) 272 S. W. 231, 233, where tie court said: ■“It will be observed tiat tie restrictions contained in tie deed, under which appellant [defendant] claims, are in form and meaning conditions subsequent. Tie conveyance by its terms .provides that, should any condition be violated, tie title to tie lot of land shall ’ revert to tie grantors, their heirs, or assigns. Tie reversion clause is in favor of tie grantors, their heirs, or assigns, and, as appel-lees belong to neither group, are not entitled to enforce tie condition.”

See, also, Werner v. Graham, 181 Cal. 174, 183 P. 945, Judd v. Robinson, 41 Colo. 222, 92 P. 724, 124 Am. St. Rep. 128, 14 Ann. Cas. 1019.

Aside from what thus intrinsically seems to have been tie plain purport of tie covenant involved, no general scheme or plan for tie development and maintenance of tie addition whereby one owner might enforce it against another appears, even after recourse is had to tie light of surrounding circumstances. The rule on tiis subject, as declared by a long line of Texas holdings, such as Hooper v. Lottman (Tex. Civ. App.) 171 S. W. 270, 271, and Curlee v. Walker, 112 Tex. 40, 244 S. W. 497, in brief substance is thus quoted from the former: “Whether a person not a party to a restrictive covenant has tie right to enforce it, depends upon tie intention of tie parties in imposing it. This intention is to be ascertained from the language of tie deed itself, construed in connection witi the circumstances existing at tie time it was executed.”

Tie intention referred to is not tiat of the grantor alone, but of both parties to tie deed. Pierson v. Canfield, supra, where it is said: “It requires the joint intent of grantor and grantee, and, as between them, tie instrument, or instruments, exchanged and forming a part of the transaction constitute tie final and exclusive evidence of tie intent of the parties and of tie covenants entered into.”

As previously pointed out, there was here neither other evidence of tie intention of tie land company grantor in imposing tiis restriction than tie fact tiat it so mediately appeared back in the respective lines of title of these present litigating lot owners, nor any proof whatever as to that of tie grantees under those instruments; both tie original plat and dedication of this addition were silent as to any restrictions, and even those found in particular deeds were all identical ■ in terms witi this one, tiat is, preserved an individual privilege to tie Omaia & Souti Texas Land Company; not only so, but, by *434tie undisputed evidence, that founder of the addition and of the Heights boulevard through it further so construed the meaning and effect of what it had done in establishing and developing the property, by promiscuously conveying lots along that thoroughfare without restrictions so long as its ownership lasted, and then empowering its final grantee, Oarroll M. Carter, to continue doing likewise ■by its above-mentioned deed of all its remaining rights and holdings to him; in this way it resulted that, from about 8 years after the ' establishment of the addition up to the end of 1927, about 115 out of the total of 467 platted lots abutting on the boulevard were thus conveyed by the land company and its assigns together without restrictions of any sort.

When recourse is thus had to the surrounding circumstances, it conclusively appears that there was no such general scheme or plan here as entitled the various vendees of these lots to enforce the quoted covenant inter sese. Since the action for and the judgment granting that .relief were dependent solely upon there being one, it follows that the writ was improvidently issued. Hooper v. Lottman (Tex. Civ. App.) 171 S. W. 270; Curlee v. Walker, 112 Tex. 40, 244 S. W. 497; Hill v. Trigg (Tex. Com. App.) 286 S. W. 182; Davidson v. Dunham, 159 App. Div. 207, 144 N. Y. S. 489; Scull v. Eilenberg, 94 N. J. Eq. 759, 121 A. 788.

Further discussion is deemed unnecessary, as these conclusions determine the merits of the appeal; the trial court's judgment has been reversed, and the cause rendered here in favor of the plaintiff in error. '

Reversed and rendered.