Wilcox v. Varney

THOMAS, J.

This is an appeal from a judgment of nonsuit granted on the ground that “the facts do not make out any cause of action against the defendants, or either of them, in behalf of plaintiffs, or either of them.” Both parties to this action contend that the court granted the said judgment on

two grounds:

(1) That the complaint does not state facts sufficient to constitute a cause of action; and (2) That at the trial plaintiffs failed to make out a case ■against the defendants, or either of them. In this they are both wrong. The record discloses the following facts: (1) That a demurrer, general and special in terms, was interposed to plaintiffs’ second amended complaint—which is the complaint set out in the transcript—and the same ivas overruled; (2) That on the day of trial defendants objected to the introduction of any testimony on the ground that the complaint did not state a cause of action. This was denied. The court took all the testimony that plaintiffs desired to offer, and at the close of plaintiffs’ ease granted the motion referred to herein.

The action is one asking for an injunction enjoining the defendants, and each of them, from permitting certain

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‘buildings to remain upon a certain lot, and ordering them to remove same therefrom, and for damages because of noncompliance with certain “building restrictions.” It is alleged in the complaint, and denied by the answer: “That pursuant to a general plan of improvement for the benefit of all lots in said tract, and for each of said lots, uniform building restrictions were by the plaintiff' Title Insurance and Trust Company, placed thereon. That each and every lot sold in said tract ivas, by the plaintiff Title Insurance and Trust Company, sold and conveyed by recorded deed, each lot subject to uniform building restrictions inserted in the deed thereof, in words and figures following, to wit: ‘That said premises shall be used for residence purposes only. That no building or structure whatever other than a private residence with the customary outbuildings, including a private stable, shall be erected, placed or permitted on said premises, or any part thereof, and that any such residence shall cost and be fairly worth not less than Fifteen Hundred Dollars ($1500.00); and shall be located not less than 25 feet from the front line of said premises, and said building shall face the front line of said premises. That no part or parts of any outbuilding or private stable which may be erected upon said premises, shall extend more than 50 feet from the rear line of said premises. That no intoxicating liquors of any character shall be bought, sold, or kept for sale on said premises or any part thereof; that said premises, or any part thereof, shall not be sold, conveyed, leased, rented to or occupied by any person of African, Japanese or Mexican descent.