Grussi v. Eighth Church of Christ, Scientist

COSIJOW, J. The plaintiff relies on the principle of law that he has an equitable easement in every other lot in Laurelhurst Addition, and a right to have. the owner of every other lot respect the building restrictions contained in all of the deeds that have been executed by the Laurelhurst Company. This court in Duester v. Alvin, 74 Or. 544 (145 Pac. 660), applied that principle. This court in Scott Co. v. Roman Catholic Archbishop, 83 Or. 97 (163 Pac. 88), construed the identical *340 restrictions involved in this suit and is authority for the decree appealed from unless the instant case can be distinguished from the Scott ease. The plaintiff contends that because the permission granted the defendant to erect a church building on the lots owned by it was given in a separate instrument rather than in the deed of conveyance held by the defendant as evidence of its title; that because the Laurelhurst Company had dissolved prior to giving its consent to the defendant permitting it to erect a church building thereon, and had conveyed the few lots owned by it in said addition to another corporation, the Laurelhurst Construction Company, it was. without authority to grant permission to defendant to erect a church building in said Laurelhurst Addition. “A person who has parted with his interest in the premises cannot question the validity of a restrictive covenant.” As a corollary the Laurelhurst Company did not have the right to grant permission to erect a school or church building after it had parted with all of its interest in the property. But the stipulation provides that the conveyance of the said seven lots by the Laurelhurst Company to the Laurelhurst Construction Company was a part of a plan or scheme of the Laurelhurst Company to aid in the settlement of the affairs of said corporation; that since June 30, 1924, the Laurelhurst Company has executed convey- • anees, one for the purpose of correcting an error in a former, deed and the other to replace a lost deed. It does not appear from the stipulation whether or not the deed evidencing* the conveyance from Laurelhurst Company to Laurelhurst Construction Company contained the restrictive clause. The consent in writing granted to the defendant to build its church was executed within six months after the Laurelhurst *341 Company voted to dissolve. The conveyance of the seven remaining lots was made and delivered for the purpose of settling up its corporate affairs. By the provisions of Section 6875, Or. L., Laurelhurst Company continued to exist as a body corporate for the period of five years thereafter, if necessary for the purpose of disposing of its property, settling its business and dividing its capital stock. Section 6877, Or. L., in effect contains the same provision: Service Lumber Co. v. Sumpter Valley Ry. Co., 67 Or. 63 (135 Pac. 539). “These statutes extending the life of the corporation, variously phrased as they are, are always construed to give the corporation the power in winding up that is needed for the protection of the public interest and the rights of individuals who have had dealings with the corporation and they have been liberally construed so as to enlarge and not to limit the corporate privileges * * .” 14a C. J. 1168, § 3835. It will be presumed that the acts of a corporation after it has determined to dissolve are performed for the purpose of settling its affairs, unless it appears from the acts or other evidence that it is attempting to transact other business: Stark Electric R. Co. v. McGinty Contracting Co., 238 Fed. 657 (151 C. C. A. 507). It is not contended by the plaintiff that the grantees of the Laurelhurst Company other than the Laurelhurst Construction Company are successors and assigns of the former company for the purpose of granting permission to the owner of lots in Laurelhurst to construct a school or church edifice on such lots. Plaintiff’s contention is that the Laurelhurst Construction Company is the successor and assign of the Laurelhurst Company for that purpose, but it does not appear that the power reserved to the *342 Laurelhurst Company to grant such permission was transferred to the Lanrelhnrst Construction Company. The stipulation is that the seven lots were conveyed. We believe that plaintiff should have alleged and proved that the Laurelhurst Company transferred all of its interest, including the right to grant permission to the defendant to construct its church edifice on the lots. We cannot presume that, especially in the face of the fact that the conveyance to the Laurelhurst Construction Company was made for the purpose of aiding the Laurelhurst Company to wind up its affairs. We infer from that that the Laurelhurst Company is the beneficiary owner of the lots transferred to the Laurelhurst Construction Company. The plaintiff accepted the deed containing the provision that the Laurelhurst Company reserved the right to grant permission to use lots in said addition for school and church purposes. He has not shown any injury nor could he in. the light of the restrictive clause in the deed. “But restrictive covenants are to be strictly construed against the person seeking to enforce them, and all doubts must be resolved in favor of natural rights and a free use of property, and against restriction.” 18 C. J. 387, § 450. “This rule of equity, however, being an encroachment on the general doctrine of the common law that the burden of a covenant does not run with the land, will be applied by a court of equity only in the exercise of its sound discretion and the courts both in England and in the United States seem inclined to restrict rather than to extend this equitable doctrine.” Id., 399, § 463. The plaintiff has no ground to complain because Laurelhurst Company executed the permission instead of Laurelhurst Construction Company, its alleged successor in this behalf. It must be conceded that. *343 one or both, corporations had that right. Which one of them exercised the right is of no concern to plaintiff. The Lanrelhnrst Construction Company is not complaining. No other grantee has any right to complain. It is also immaterial that the permission was given in an instrument separate from the deed conveying the premises to defendant. The Laurelhurst Company reserved the right to grant the permission. Plaintiff holds his title subject to that reservation. There is nothing in any of the deeds that would warrant the court in construing the deed so as to require the exercise of that right to be embodied in a deed of conveyance. For these reasons the decree appealed from is affirmed. Affirmed.