Hartwig v. Grace Hospital

Ostrander, J. (after stating the facts). It requires no argument to prove that all of the property embraced in the Reed plat is in its use restricted to residence purposes. None is required, either, to prove that the use of the Bela Hubbard home, with or without additions thereto, for a hospital, violates the restriction, and is a breach of the condition. The Bela Hubbard house was a single residence when the partition of lands was made. No objection is perceived to including it in the general plan evidenced by the restrictive covenant since the partition. No owner of the title thereto has devoted it to any. other use until defendant acquired it, and in fact any other use of it has been, until defendant bought it, temporary. Both its form and its use have been changed in violation of the restriction. It is equally clear, I think, that it will be a further violation of the restriction if the nurses’ home is built on either lot 2 or lot 3. The real question in this case is not whether a plain restriction has been and is proposed to be violated by defendant, the deed by which it acquired title and its use of the premises answering any suggestion to the contrary, but whether it can be brought to account therefor by adjoining proprietors, at some of whom the defendant points an accusing finger, asserting that “You did it first,” or have otherwise lost the right to complain. Defendant says the restrictions in the deed given by the heirs of Bela Hubbard to Henry G. Hubbard cannot be enforced by plaintiffs, because, when a restrictive covenant is imposed for the benefit of the land still retained by the grantor, the restriction is not enforceable by subsequent purchasers inter se. As [734] applied to this case, this proposition rests upon the assertion that there is no evidence that the restriction in the deed to Henry G. Hubbard was inserted for the purpose of protecting or benefiting subsequent purchasers of the land. The evidence that the restriction was intended for the benefit of purchasers of the land is patent. The very character of the restriction is evidence of the fact, especially when the quantity of the land affected and its general location are considered. The presumption is that a restricted residence district was intended. Moreover, the contention is ruled against defendant by Schadt v. Brill, 173 Mich. 647 (139 N. W. 878, 45 L. R. A. [N. S.] 726); Erichsen v. Tapert, 172 Mich. 457 (138 N. W. 330); Zoller v. Goldberg, 183 Mich. 197 (149 N. W. 989). It is next contended that restrictions in the deeds given by the Hubbard Land Company to purchasers of lots cannot be enforced by plaintiffs in this action. The argument is that (a) the evidence does not show any general plan of improvement maintained from its inception and understood and acted upon by all in interest; (b) the plaintiffs did not, in purchasing the property, rely upon the restrictions; (c) the restrictions were inserted for the benefit of lot 2, which was to be retained by Reed, who platted and sold the property. The cases of Allen v. City of Detroit, 167 Mich. 464 (133 N. W. 317, 36 L. R. A. [N. S.] 890), and Summers v. Beeler, 48 L. R. A. 54 (90 Md. 474, 45 Atl. 19, 78 Am. St. Rep. 446), are cited. It is quite reasonable to say that the deeds given by the Hubbard Land Company recognized the restrictions in the earlier deed, and that they were intended for the benefit of any purchaser of the land. If the earlier general restriction thus recognized is enforced, it is not important in this case to spend time in debating whether those laid by the Hubbard Land Company are precisely enforceable. As has been pointed out, there [735] is no occasion here to rely upon an advertised general plan and scheme of selling lots in order to find the intention to make a restricted district. It is further contended, and is the contention of merit, that plaintiffs have acquiesced in a use of lot 2 for such a period of time that equity will not now grant them relief by injunction. In this connection, reliance is placed upon the fact that Reed expended money and made some changes in the residence building; Malmberg, in fitting it for a Swedish massage institute, expended a considerable sum of money; and defendant has at some expense made additional changes. The case is not free from doubt; and while, perhaps, a doubt ought never to be resolved in favor of a covenantee who buys with purpose to breach his plain covenant, it remains that every one who, since the platting, has been lawfully in possession of lot 2, has used it visibly for other than residence purposes. The additions made to the building denote — advertise ■ — the fact that a residence is not and will not be maintained there. Owners, of adjoining property, and' some of the plaintiffs who purchased from Reed, have been advised by the record and by their deeds of the restrictions sought now to be enforced. It is to be inferred that the building on lot 2 has physically lost its character as a residence, and only by expensive changes can the residence character thereof be restored. There is fair ground for refusing to plaintiffs the injunction so tardily asked for, and it will be refused as interfering with the use by defendant of lot 2. It is held, and has been already stated, that the proposed nurses’ home will not be a residence within the meaning of the condition, and plaintiffs may have the writ of injunction to restrain the erection of the building on lot 3. [736] Neither party will recover costs of this, appeal as against the other, but one-half the cost of preparing and printing the record will be borne by plaintiffs and one-half by defendant. Kuhn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.