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Smith v. Second Church of Christ, Scientist, Phoenix

Supreme Court of Arizona

May 11, 1960

Clarence J. SMITH and Thelma B. Smith, his wife, Rodman K. Palmer and Mary G. Palmer, his wife, Julius Harr and Pearl Elaine Harr, his wife, Otto Schmieder and Ruby M. Schmieder, his wife, Morton S. Kleinberg and Maxine Ruth Kleinberg, his wife, Sol Tropp and Isabel R. Tropp. his wife, Edgar Pound and Garnett Pound, his wife, John Welsh, Jr., and Ann M. Welsh, his wife, Alfred Andersen and Vera M. Andersen, his wife, William Price, W. D. Manor, and Victorial Manor, his wife, Charles L. Segersten and Helen B. Segersten, his wife, Frank J. Schmidt, Jr., and Florence H. Schmidt, his wife, Appellants,
SECOND CHURCH OF CHRIST, SCIENTIST, PHOENIX, ARIZONA. a nonprofit corporation, Appellee.

Rehearing Denied June 28. 1960.

Page 1105

[87 Ariz. 402] Marks & Marks, Phoenix, for appellants.

Cunningham, Carson & Messinger and William H. Rehnquist, Phoenix, for appellee.


Plaintiff-appellee Second Church of Christ, Scientist, Phoenix, Arizona (hereinafter called the 'appellee') commenced this action for a declaratory judgment against the other owners of property in Block 2, Orangewood, to determine whether the land owned by it in lot 10 thereof is encumbered by restrictive covenants [87 Ariz. 403] which prevent the building of a church. The court below entered summary judgment in favor of appellee, from which judgment this appeal has been taken by the other owners.

Block 2, Orangewood, is a tract of land in Maricopa County of approximately 160 acres, divided into lots numbered one through twenty. On March 7, 1913, a deed covering lots one through ten was recorded in Book 103 of Deeds, at pages 111 and 112, and contained the following clause (hereinafter called the '1913 covenant'):

'It is provided and covenanted as a covenant running with the land herein described and each and every part thereof that the grantee shall erect no dwellings on said land the cost of which shall be less than $4,000.00 each and it is further covenanted that no barns, garages or other buildings whatsoever shall be erected on said land until after the construction of said dwellings shall be well under way; provided that the above restrictions shall not apply to the West one-half of said premises.' (Lot 10 is in the West one-half of said premises.)

Page 1106

On October 28, 1944 the Arizona Title Guarantee & Trust Company, as trustee, recorded in Book 66 of Miscellaneous Records, at page 570, a Declaration of Restrictions (hereinafter called the '1944 restrictions') on lots eleven through seventeen and the west one-quarter of lots five and six. The restrictions contained therein, which were declared to be 'covenants and restrictions running with said lot or lots or parcels of land situated in said tract for the mutual benefit of the undersigned and all subsequent grantees of any portion thereof,' are as follows:

'1. That said property shall be used for single dwelling houses only, except as provided, in Number 9 thereof.

'2. That no dwelling erected thereon shall cost less than Seventy-five Hundred ($7,500.00) Dollars.

'3. That no out building constructed thereon shall be more than one story in height and the main residence building shall comprise not less than fifteen hundred (1500) square feet of floor space.

'4. That no dwelling or out building shall be constructed nearer than sixty (60) feet to the front property line or nearer than ten (10) feet to any side line.

'5. That no out building or garage of any kind may be constructed until the main building has been constructed; or used temporarily or permanently as a dwelling or place of adode until the main residence has been completed.

* * *

* * *

[87 Ariz. 404] '8. That the undersigned and its grantees shall incorporate these covenants and restrictions in any deeds executed by them to lots in the above described tract either in full or by reference.

* * *

* * *

'10. That the foregoing covenants and restrictions shall run with the land for a period of twenty-five (25) years and that the grantees or any one owning land in said tract may have all appropriate rights to enforce the same.'

By deed dated December 1, 1944, the Arizona Title Guarantee and Trust Company 'granted, sold and coveyed' lot 10 to Charles F. and Myra U. Black. The following language appeared in the habendum clause:

'And the Grantor hereby binds itself * * * to warrant and defend, all and singular the said property unto the said Grantees, their heirs and assigns * * * subject to * * * building and other restrictive covenants attaching to and running with the title, set forth in particular in Book 103 of Deeds, page 111 * * *.'

Thereafter, the Blacks' conveyed their interest in lot 10 as follows:

On April 15, 1952 they conveyed the north half (hereinafter called 'parcel 1') to appellants Clarence J. and Thelma B. Smith 'Subject To: * * * Restrictions as contained in Warranty Deed recorded (the 1913 covenant) * * *.'

On September 24, 1952, they conveyed the southeast quarter (hereinafter called 'parcel 2') to Frank W. and Louise Paul Beer 'Subject To: * * * Restrictions as set forth in instrument of record, recorded (the 1944 restrictions) * * * and as contained in Warranty Deed, recorded (the 1913 covenant) * * *.'

On March 23, 1956, they conveyed the southwest one-eight (hereinafter called 'parcel 3') to Ralph A. and Ethel M. Harvey (who have apparently transferred their interest to two of the appellants herein) 'Subject To: * * * Restrictions in instruments recorded (the 1913 covnant and 1944 restrictions) * * *.'

On May 21, 1957, Myra H. Black, 'dealing with her sole and separate property' conveyed the balance of lot 10, or the west-central one-eighth thereof (hereinafter called 'parcel 4') to appellee 'Subject To: * * * Restrictions, conditions and covenants as contained in instrument recorded (the 1913 covenant) * * *.' The Blacks had no further interest in lot 10 following

Page 1107

this conveyance, and are not parties to this action.

On May 21, 1957 appellee acquired title to parcel 2 by a conveyance from the Beers 'Subject To: * * * Restrictions, conditions and covenants as contained in instrument recorded (the 1913 covenant) * * *.'

[87 Ariz. 405] We consider first what rights, if any, the owners of property in Block 2, other than lot 10, have to assert restrictions against appellee's interests in parcels 2 and 4 in lot 10. It is clear that they have no standing arising from the original declarations of the 1913 covenant and the 1944 restrictions. The 1913 covenant is expressly inapplicable 'to the West one-half of said premises,' within which area lot 10 lies; and the 1944 restrictions do not purport to apply to lot 10.

Nor can such owners of property outside lot 10 assert rights against any owners of lot 10 on the basis of the 1944 deed to the Blacks. That deed conveyed an estate in fee simple without any qualifications or conditions (see A.R.S. §§ 33-432, 33-435). The reference to the 1913 covenant following the words 'subject to' is a qualification to the warranty made by the grantor and does not even purport to be a burden on the estate conveyed to the grantee.

Accordingly, there were no enforceable restrictions on lot 10 at the time the Blacks acquired title thereto in 1944. Such restrictions as are asserted in this proceeding must arise, if at all, from the deeds (hereinafter called the 'Black deeds') which the Blacks executed in conveying their interest in parcels 1 through 4 in lot 10. On the basis of such deeds, the owners of property outside of lot 10 can, assuredly, maintain no interest. The Blacks were not their grantors and there is no theory applicable to this case upon which they can claim benefits emanating from provisions in deeds executed at a subsequent time, to other property and in favor of other grantees. See O'Malley v. Central Methodist Church, 67 Ariz. 245, 250-251, 194 P.2d 444; Korn v. Campbell, 192 N.Y. 490, 85 N.E. 687, 37 L.R.A.,N.S., 1.

The present owners of parcels 1 and 3 in lot 10 do assert such right, however, and claim that the 1913 covenant and the 1944 restrictions, referred to, at least in part, in the Black deeds, are binding on all of lot 10 and prohibit a church. It will first be determined whether such covenant and restrictions, if binding, do restrict a church building.

The 1913 covenant prohibits the erection of dwellings costing less that $4,000. A dwelling is, of course, a building suitable for residential purposes and does not include a church. See Ainsworth v. Elder, 40 Ariz. 71, 9 P.2d 1007; and 13 A.L.R.2d 1239. The only other provision restricting types of building is the clause that (the 1913 covenants):

'* * * no barns, garages or other buildings whatsoever shall be erected on said land until after the construction of said dwellings shall be well under way * * *.'

[87 Ariz. 406] The general phrase 'or other buildings' here follows the specific words 'barns' and 'garages', and under the rule of ejusdem generis, such general language must be confined in its meaning by the specific enumeration which precedes it, unless an intention to the contrary is clearly shown. See, City of Phoenix v. Yates, 69 Ariz. 68, 73-74, 208 P.2d 1147. Here we find no contrary intention and the words 'other buildings' will not be enlarged to encompass a class more comprehensive than commonly implied form the words 'barns' and 'garages', which clearly do not include a church.

The 1944 restrictions provide that the property 'shall be used for single dwelling houses only * * *.' It cannot seriously be disputed, and indeed appellee concedes, that a church is not a single dwelling house and, accordingly, if the 1944 restrictions apply to lot 10, they clearly prohibit erection of a church thereon (see 13 A.L.R.2d 1239).

Page 1108

the foregoing it is clear that appellee may be restrained from building a church on the parcels owned by it in lot 10 only if it is bound by the 1944 restrictions and if such restrictions may be enforced by the other owners of parcels in lot 10.

As noted above, the 1944 restrictions are by their very terms inapplicable to lot 10. The references to these restrictions in the Black deeds are not phrased in the form of covenants by which the grantees bind themselves expressly to the 1944 restrictions. Indeed, the Beers, who are the predecessors of appellee with respect to parcel 2, never executed the deed delivered to them by the Blacks. Although the absence of their signatures may not be determinative where they have accepted and recorded the deed (see Murphey v. Gray, 84 Ariz. 299, 305, 327 P.2d 751), nevertheless it tends to refute the conclusion that the restrictions, which are mentioned therein only be reference, were to be given greater scope and effect than expressed by their terms.

In the two Black deeds which allude in any way to the 1944 restrictions, these restrictions are referred to, along with others (which, so far as is known, may not even be applicable to the particular property), as items which the property is 'subject to'. The creation of new restrictions on the use of land requires greater clarity and explicitness than are found in the deeds here in issue. Restrictive covenants will not be lightly inferred from ...

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