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Palermo v. Allen

Supreme Court of Arizona

March 14, 1962

Victor P. PALERMO and Rose Palermo, husband and wife, Mable M. Ross, and P & F Investment Company, an Arizona Corporation, Appellants,
v.
Billy ALLEN et al., Appellees.

In Banc.

Page 907

[91 Ariz. 59] Patricia Scott, Tucson, for appellants.

Wright, Goddard & Barry, Charles E. Ares and Paul G. Ress, Jr., Tucson, for appellees.

[91 Ariz. 60] JENNINGS, Justice.

Plaintiffs-appellants, hereinafter called 'Plaintiffs', commenced this action for declaratory judgment and to quiet title in certain real property against the claim of an interest therein by defendants-appellees, hereinafter called 'Defendants', based on deed restrictions. Trial was had to the Pima County Superior Court, sitting without a jury. Judgment was entered against the plaintiffs on their complaint and in favor

Page 908

of all the answering defendants for their costs. From the judgment this appeal has been taken.

Helena J. Cowperthwait was the owner of two tracts of land in Pima County, Arizona, the one being bounded on the east by Swan Road and on the south by Grant Road, consisting of about 120 acres known as tract #1, the other being bounded on the east by Swan Road and on the north by Grant Road, consisting of 20 acres known as tract #2. This land was sold to various purchasers over a 19-year period as exhibited by the plat.

(Image Omitted)

Page 909

On May 28, 1924, Cowperthwait executed a deed to Richard C. MacTavish conveying a parcel of tract #1 consisting of 30 acres. The deed contained no restrictions on the use of the property conveyed.

On November 27, 1929, she executed a deed to Gilbert Duncan conveying a parcel of tract #2 consisting of about 10 acres. The deed contained the following restrictive clause:

'This deed is made subject to the following covenants, restrictions, and conditions, all of which shall run with the land, be binding upon the party of the second part herein, his heirs, executors, administrators and assigns, and shall be and remain in full force and effect until January 1, 1980 * * * to wit:

'* * * said property shall be used only for residence purposes; * * *

[description of uses prohibited]

'In the event of the failure of the party of the second part herein, his heirs, executors, administrators or assigns to comply with and keep each and all of said covenants, restrictions and conditions, the said above described [91 Ariz. 61] property shall upon failure revert to and become the property of the parties of the first part herein * * * as and for liquidated damages of such failure.'

September 15, 1937, Cowperthwait and Duncan entered into an agreement modifying the restrictive covenant in the Duncan deed to permit the taking of paying guests or the conducting of a private school. She further agreed in the same instrument that in any conveyance made of the 10-acre tract directly north across Grant Road from and facing Duncan's property she would incorporate substantially the same restrictions as were contained in the deed to Duncan.

On September 18, 1937, she executed a deed to Camille G. Gay conveying approximately 20 acres (10 of which were directly across from Duncan) in tract #1. The deed contained restrictions which were substantially the same as in the Duncan deed although the words used were not identical. The Gay deed also contained a reversionary clause.

On August 20, 1940, Cowperthwait conveyed approximately 10 acres in tract #2 to Thomas F. Griffin. The deed contained the following restrictions which are the subject of this appeal, to wit:

'Subject, further, to the following restrictions:

'(1) Said property shall be used only for residence purposes * * *.

[description of uses prohibited]

'(7) All of the foregoing covenants, restrictions and conditions shall be and remain in full force and effect until January 1, 1980, * * *.'

On August 12, 1941, she conveyed approximately 10 acres in tract #1 to O. J. Farness, the deed containing the following restrictive clause:

'This deed is made subject, also, to the following covenants, restrictions, and conditions, all of which shall run with the land and be binding upon the parties of the second part hereto, their heirs, executors, administrators, and assigns:

'Said property shall be used only for residence purposes * * *.

[description of uses prohibited]

'All of the foregoing covenants, restrictions and conditions shall be and remain in full force and effect until January 1, 1980 * * *.'

On April 14, 1943, she conveyed a parcel of land in tract #1 to C. M. Nielsen. The deed contained restrictions on the use of the property conveyed as follows:

'This conveyance is made subject to the following restrictions and conditions: * * *

[91 Ariz. 62] 'Said property shall be used only for residence purposes * * *.

[description of uses prohibited]

Page 910

'All of the foregoing covenants, restrictions and conditions shall be and remain in full force and effect until January 1, 1980 * * *.'

Thereafter, Cowperthwait no longer owned any land in the area. During the time Cowperthwait owned the land it was not laid out in lots and blocks; no streets were dedicated; no subdivision plat, map or declaration of restrictions was recorded. However, the various parcels conveyed were later developed and platted by the grantees with comprehensive building restrictions.

After the death of Helena J. Cowperthwait and her husband, their sole heir and distributee, by instrument dated August 31, 1955, released and waived all reversionary rights and estate under the deeds to Duncan and Gay, both of which contained reversionary clauses. The heir ...


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