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
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
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
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 § 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
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.
"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