Summit Place Co. v. Terrell

MOURSUND, J. [1] While the court recited in his findings of fact that a copy of a portion of the map of Summit Place addition, and of the instrument dedicating streets in said addition, is attached to the findings of fact, the record fails to show that this was done; but there is a complete map of said addition among the papers which had been attached to the statement of facts and became detached in some way. This map is relied upon in the briefs of both parties, and, there being no dispute concerning the fact that it is a part of the statement of facts, we conclude that we erred in refusing to consider it when We originally decided this case (203 S. W. 1110). [2] The only representation pleaded and relied upon is that plaintiff in error represented lot 6, block 7, in Summit Place addition, as containing 114 feet front on Queens-borough Court. Plaintiff in error contends that the lot in question does in fact contain 114 feet, and therefore the representation made by Roos was in fact true. In his brief defendant in error says: “Just how it can be contended that defendant in error got 114 feet is something more than we can conjecture; but, if he did, this case should be reversed and rendered.” The question, therefore, is, did defendant in error by his deed obtain title to a lot containing 114 feet? The deed describes the lot as lot No. 6, block 7, as shown by the map of Summit Place. There is no statement as to the size of the lot. The map shows that the lot lies west of Howard street, and fronts on Queensborough Court. The black line between lots 5 and 6 is marked “154.17,” and the line at the rear of the lot is marked “114.0.” These are the only figures appearing with reference to such lot. There is a green shaded line along the front and the side on Howard street, and at the corner red lines cross each other just inside the green shading, and run out to the street. The map has indorsed on it a duly acknowledged dedication of streets and alleys in Summit Place, executed by the Summit Place Company, through its president, J. O. Terrell, and attested by defendant in error, who at that time was secretary of the company. That instrument contains the following statement : “The red lines on map indicate public sidewalks 4 feet wide, and the green shadings indicate private parking between the public sidewalk and the curbing along the streets.” The right was reserved therein by the company for three years to construct such sidewalks and curbings as it might desire. The deed contains the following provision; “That such residence shall be as much as two stories in height, and cost and be fairly worth not less than ten' thousand dollars ($8,000.00), and no part thereof, except the steps descending from the gallery or building, shall be located nearer than fifty (50) feet from the curb line on the front of said premises, nor nearer than ten (10) feet from the side lines of said premises, and shall face the front line of said premises, to wit, on Queensborough Court; that no outbuildings or private stables, or any part thereof, shall be erected, placed, or permitted on said premises at a distance of more than fifty (50) feet from the rear line of said premises, and not less than forty feet from any side street; that no fences or copings whatsoever more than three (3) feet in height shall be erected, placed, or permitted upon said premises at a distance nearer than seventy-five (75) feet from the front line of said premises, and not nearer than forty feet from any side street, and no fence or coping shall be erected on any lot outside of the proposed sidewalks as shown by the recorded plat of said addition, and provided, further, that the four-foot strip designated on the map of said addition as a sidewalk is dedicated to the public for such purposes, and the Summit Place Company reserves the right to build a sidewalk along said strip as provided in said map.” Defendant in error admitted that, if the sidewalk and priv'ate parking be included as a part of the lot, it contains 114 feet. It is contended that the map shows that measurements were to be made from the sidewalk. This contention is based on the fact that the lot across Queensborough Court from lot 6 has its back line marked “114,” and the green space marked in small figures “12,” [147] such marls being near the front of the lot. From this Is deduced the theory that the 114 does not include the 12; but upon what can such theory rest? The “114” is written much larger than the “12,” and it is just as plausible that it relates to the entire line upon which it is placed as that it was only intended to marls part of it, and that the “12” was placed for the purpose of showing how much of the 114 was talsen up by private parking. The width of the sidewalk is not delineated on the map, nor is the space reserved therefor marked at the rear end' of the lot; and therefore the figures 114, even aiecording 'Jto defendant in error’s theory, would include the sidewalls, for the line is unbroken until it intersects the green shading. If the figures along the lines exclude the green shading, then the figures indicating the depth of the various lots also are arrived at by measuring only to the private parking. Attention is also called to the fact that the figures “114.0” appear inside of the lot; but as every figure relating to the lots appears inside of them, and none on the outside, no theory can be deduced that-such figures were intended to only mark the distance to sidewalks or private parking. When the map, which is fairly accurately drawn, is considered carefully, and distances represented by the lines of the various lots are compared, it is found that lot 6 and the lot opposite it, which has the same front, must run to the curb in order to get the distance of 114 feet. This is easily ascertainable by comparing the front lines of the 100 feet inside lots and lot 3, block 1, which has a front of 98 feet, with the lines on said lot 6 and the lot opposite it, measuring such lines west from the red sidewalk line instead of the curb. Of course, if lot 6 extends only to the sidewalk, the other corner lots also extend to the sidewalk. If defendant in error’s theory that measurements are to be made from the sidewalk be taken as correct, we are confronted with the fact that corner lots, whose rear lines are marked 100 feet, are mapped on a different scale from the inside lots, whose rear line is also marked 100 feet, and, furthermore, that said lot 6, conveyed to defendant in error by plaintiff in error, is mapped on a different scale from the other lots in the same block. While there are a few inaccuracies in the map, when it is taken as a whole a comparison of lines shows that the comer lot distances must be taken from the curb in order to credit the drawer of the map with using the same scale in mapping the entire addition. [3] Defendant in error seeks to deduce from one of the restrictions in the deed an intent to make the sidewalk the boundary of lot No. 6. The provision is to the effect that no building shall be placed nearer than 10 feet from the side lines. If the side line of No. 6 was the curb line, the building could be placed on ground designated for sidewalk; therefore it is contended that by side line was meant the line of the sidewalk, and that lot 6 would be bounded by the sidewalk. We do not believe this provision could be given the effect of limiting lot 6 to 98 feet, and thus reserving to the grantor the fee in the space for sidewalk and private parking. There is nothing in the deed showing a separate conveyance of such parcels. They are either conveyed as part of lot 6 or not at all. The lot conveyed is referred to in all of the building restrictions as the “premises,” and the “curb line on the front of said premises” is mentioned, and it is provided that no fence or coping shall be erected on any lot outside of the proposed sidewalks, as shown by the recorded plat of said addition. These recitals indicate clearly that the premises conveyed, namely, lot 6, block 7, extends to the curb. It is true that if the “side lines” of said premises, as used by the drawer of the deed, be assumed to be the curb lines, a building could be placed so as to extend two feet over the sidewalk. An intention to permit that to be done would be in direct conflict with the intent expressed, to reserve for the benefit of the public as a sidewalk the space designated for that purpose, and, as the grantor would naturally not undertake to grant any rights of which it had previously divested itself, it is reasonable that the real intent was to require the building to be erected not less than 10 feet from the sidewalk line, as to corner lots. [4] The previous dedication, duly recorded, of the sidewalk space made part of the map, and therefore, by reference, a part of the deed, precludes the grantee from using the sidewalk space for building purposes. [5] If the deed be viewed as having conflicting clauses, which cannot be reconciled, the clause will be retained which gives the greatest estate, and the clause in conflict therewith will be rejected. The deed, as a whole, would be construed to vest in the grantee the fee to the sidewalk space and the title to the private parking, with the restriction’that he is not permitted to place any fences thereon. [6] Any ambiguity must be resolved in favor of the grantee, and, when the deed is considered as a whole, it is apparent that the lot conveyed includes the sidewalk space and the private parking space. If this was a suit involving title to said strips of land, the grantor could not maintain a contention that the same were not parts of the lot conveyed by it. The deed shows by several recitals that such strips are part of the premises conveyed, and it cannot be contended that such rights as the grantee has therein passed to him by reason of his purchase of property abutting thereon. [7] The owner of a lot abutting on a street acquires the fee to the middle of the street; but it is hardly probable that the owner of a lot, if specifically limited to the sidewalk [148] as .Ms line,' would own the fee in the land used for sidewalk, and that designated merely as “private parking,” and then- the fee to the middle of the street. We conclude that the court erred in holding that lot 6 has a frontage on Queensborough Court of only 98 feet. The representation alleged to have been made by appellant is literally true. It follows that no judgment can be sustained on the ground that fraud was perpetrated by means of such representation. Tire conclusion announced by us is derived, as a matter of law, from the deed and the map made part thereof. If such instruments left the intent vague as to what was conveyed, the verbal testimony of those who were instrumental in laying out and platting the addition supports the construction adopted by us. Even the defendant in error believes that he became entitled under the deed to some kind of estate or rights in the private parking space. His theory was that the sidewalk and private parking was not a part of the lot, and he expressed the opinion that he did not get 114 feet, but also stated that if he did he.could not use it. He also said: “As to making no claim to it, I wouldn’t want to allow anybody to build a negro shanty there or anything of that kind; I think it belongs to the public. I think probably I own to the middle of the street, but I couldn’t utilize it; couldn’t handle it.” In speaking of sales of lots by him in the same addition, defendant in error said: “In these deeds I sold by the lot and specified from the curb measurements. I can’t recall if in these deeds I made I sold from the curb, but I am sure I sold this corner lot at one time; that I explained how it was. I explained that there were sixteen feet there in the curb and sidewalk, and explained how it was measured.” There was no allegation that Roos represented the lot as containing 114 feet, exclusive of sidewalk space and private parking, nor did defendant in error testify to any such representation. Defendant in error did not allege that Roos knew appellee was laboring under the mistaken belief that the lot contained 114 feet, measuring from the sidewalk, and that he fraudulently concealed from appellee the fact that such belief was erroneous. Defendant in error made a mistake in his construction of what Roos meant by Ms statement,, and would not have taken lot 6 at $60 per foot had he known that he was expected to alloiw for the 16 feet included in sidewalk and private parking; but this is not a case based on any allegation of mistake, but a suit for damages for fraud, and, as the representation relied upon is shown as a matter of law to have been literally true, the court erred in Ms conclusions of fact and judgment. We do not wish to be understood as approving the theory as to measure of damages upon which this case was tried. The order overruling plaintiff in error’s motion for rehearing is set aside, and a rehearing . granted upon said motion and the supplemental motion for rehearing; the judgment of affirmance heretofore entered in this cause is set aside, and judgment rendered in lieu thereof that the defendant in error take nothing by his suit, but that he recover all costs incurred in the trial court up to the trial of the cause, it not being clear when the taxes were paid, and that plaintiff in error recover of defendant in error the remainder of the costs incurred in the trial court as well as the costs of appeal. Footnotes [1] <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] i&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes