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24771 - Louis Alan Taylor, et al. v. Jimmy Lindsey and Linda E. Echols

Davis Adv. Sh. No. 10
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Louis Alan Taylor,

Cathy Lee Taylor,

Dennis Bright, Earlene

Bright, Elaine J. Couch,

Billy D. Mulligan, Diane

S. Mulligan, Eric G.

Baumgardner, Patricia

L. Baumgardner, Danny

L. Johnson, and Vicki

W. Johnson,

Respondents,

v.

Jimmy Lindsey and

Linda G. Echols,

Petitioners.

ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS

Appeal From Anderson County

Ellis B. Drew, Jr., Master-in-Equity

Opinion No. 24771

Heard January 20, 1998 - Filed March 9, 1998

REVERSED

Paul L. Foster, Jr., and Joseph G. Armstrong, both

of Foster & Foster, L.L.P., of Greenville, for

petitioners.

p.10


TAYLOR, ET AL., v. LINDSEY, ET AL.

Tom W. Dunaway, III, of Dunaway & Associates, of

Anderson, for respondents.

MOORE, A.J.: We granted petitioners a writ of certiorari to

review the Court of Appeals' decision in Taylor v. Lindsey, Op. No. 96-UP-

411 (Ct. App. filed November 18, 1996). We reverse.

FACTS

Petitioner Linda Echols purchased two lots from petitioner

Jimmy Lindsey in the Camelot Court subdivision. 1 A restrictive covenant

states: "No residence to cost less than $10,000.00 shall be erected on said

lots. . . " The respondents brought this action seeking an injunction

against Echols preventing her from placing a mobile home on her lots and

preventing Lindsey from allowing the placement of mobile homes on other

lots he still owns. The master held the restrictive covenant does not

prohibit mobile homes. Respondents appealed to the Court of Appeals.

The Court of Appeals reversed the master and found the restrictive

covenant prohibits the placement of mobile homes on the lots.

ISSUE

Did the Court of Appeals err in holding the

restrictive covenant prohibits mobile homes?2

DISCUSSION

Petitioners contend the Court of Appeals erred by holding


1 This subdivision was originally subdivided in the early 1960s by

M.W. Fore. However, the subdivision never fully developed and as of 1995

only six houses were currently built on the 167 lots. These six homes are

valued between $64,000 and $75,000.

2 An action to enforce restrictive covenants by injunction is in equity.

Holling v. Margiotta, 231 S.C. 676, 100 S.E.2d 397 (1957). On appeal, in

an equitable action tried by a master alone, we can find facts in

accordance with our view of the evidence. Townes Assoc. v. City of

Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976).

p.11


TAYLOR, ET AL., v. LINDSEY, ET AL.

Nance v. Waldrop, 258 S.C. 69, 187 S.E.2d 226 (1972), dispositive. We

agree.

In Nance, the Court construed a restrictive covenant in a deed

written in 1938. The covenant stated: "No house shall be erected thereon

costing less than Four Thousand Five Hundred ($4,500.00) Dollars." The

Court noted that mobile homes were virtually unknown in 1938 and

whether mobile homes were restricted was not considered by the parties.

The Court then held that use of the words "house" and "erected" indicated

an intent on the part of the creator that only conventional homes be built

and mobile homes were prohibited.

Words of a restrictive covenant will be given the common,

ordinary meaning attributed to them at the time of their execution.

Marriott Corp. v. Combined Properties Ltd. Partnership, 239 Va. 506, 391

S.E.2d 313 (1990). See also 20 Am.Jur.2d Covenants ยง 171 (1995)("The

words of the covenant will be given their commonly held meaning as of

the date the covenant was written, not as of some subsequent date.").

"'Restrictive covenants are contractual in nature,' so that the paramount

rule of construction is to ascertain and give effect to the intent of the

parties as determined from the whole document." Palmetto Dunes Resort

v. Brown, 287 S.C. 1, 336 S.E.2d 15 (1985). We question how the parties

in Nance could have intended to prohibit mobile homes which were non-

existent when the restrictive covenant was drafted. We hereby hold Nance,

a 3-2 decision, was incorrectly decided and overrule it.

"The court may not limit a restriction in a deed, nor, on the

other hand, will a restriction be enlarged or extended by construction or

implication beyond the clear meaning of its terms even to accomplish what

it may be thought the parties would have desired had a situation which

later developed been foreseen by them at the time when the restriction

was written." Forest Land Co. v. Black, 57 S.E.2d 420, 424 (1950). It is

still the settled rule in this jurisdiction that restrictions as to the use of

real estate should be strictly construed and all doubts resolved in favor of

free use of the property, subject, however, to the provision that this rule of

strict construction should not be applied so as to defeat the plain and

obvious purpose of the instrument. It follows, of course, that where the

language of the restrictions is equally capable of two or more different

constructions that construction will be adopted which least restricts the

use of the property. McDonald v. Welborn, 220 S.C. 10, 66 S.E.2d 327

(1951). "A restriction on the use of property must be created in express

terms or by plain and unmistakable implication, and all such restrictions

p.12


TAYLOR, ET AL., v. LINDSEY, ET AL.

are to be strictly construed, with all doubts resolved in favor of the free

use of property." Hamilton v. CCM, Inc., 274 S.C. 152, 157, 263 S.E.2d

378, 380 (1980).

Here, the restrictive covenant was written in the 1960s when

mobile homes were prevalent. Therefore, if the grantor had wanted to

restrict mobile homes, he could have done so. Schaeffer v. Gatling, 137

So.2d 819 (Miss. 1962)("If the original owner of the subdivision had desired

to prohibit the use of house trailers as residences, this could easily have

been accomplished by designating house trailers as [a] prohibited use, or

by restricting architectural design, or by placing a minimum on the floor

space for a residence, or by prohibiting temporary residences.").

Black's Law Dictionary defines "erect" as being synonymous

with "construct." Black's Law Dictionary 542 (6th Ed. 1990). "Construct"

is defined as "to build; erect; put together; make ready for use." Id. at

312. "Residence" is defined in Black's as a "place where one actually lives

or has his home; a person's dwelling place or place of habitation; an abode;

house where one's home is; a dwelling house." Id. at 1308-9.3 The terms

of this restrictive covenant do not prohibit mobile homes and thus we will

not enlarge the restriction by construing the words beyond their clear

meaning. Strictly construing the covenant, it does not prohibit mobile

homes.

Respondents then contend that if mobile homes are not

prohibited, the $10,000 restriction on the mobile home's value must be

looked at in present day dollars which is approximately $50,890.4 We

disagree.

The same rules apply to this portion of the restrictive

covenant. If the grantor had wanted to tie the $10,000 figure to some

type of index to allow for future inflation, he could have easily done so.

Since he did not, we do not think the figure should be amended to reflect

its present day value.

REVERSED.

FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.


3 The American Heritage Dictionary (2nd Ed. 1982) similarly defines

"erect" as "to set up or establish" and "residence" as "the place in which

one lives."

4 It is undisputed the mobile home is appraised at $13,049.

p.13