Edwards v. Southampton Extension Civic Club

CIRE, Justice

(dissenting).

I respectfully dissent.

My brethren interpret paragraph (7) as meaning as a matter of law, that the restrictions were to expire after one twenty-five year renewal. If paragraph (7) were the only relevant provision in the deed, I might be inclined to agree with the majority opinion. In examining the deed in question, however, I find paragraphs (1) and (2) of the restrictions (quoted in the majority opinion) are also material to the question of the grantor’s intention concerning the ultimate duration of the restrictions.

While recognizing the rule stated by the majority that restrictions are generally construed strictly in favor of the grantee and against the grantor, and in favor of the free use of property, I feel there are other, equally well-settled rules of construction that require viewing the provision in question from a different perspective. See generally, Annot., 175 A.L.R. 1191 (1948). First and foremost is the rule that the ultimate purpose in construing a deed is to ascertain the intention of the parties, to the end that their purpose may be effectuated. Newsom v. Newsom, 378 S.W.2d 842 (Tex.Sup.1964); Sun Oil Co. v. Burns, 125 Tex. 549, 84 S.W.2d 442 (1935); Couch v. Southern Methodist University, 10 S.W.2d 973 (Tex.Comm’n App.1928, jdgmt. adopted); Wald v. West MacGregor Protective Association, 332 S.W.2d 338 (Tex.Civ.App.—Houston 1960, writ ref’d n. r. e.). The intention of the parties must be gathered from the entire instrument construed as a whole, and not from some isolated clause or paragraph. Dallas Joint Stock Land Bank v. Harrison, 138 Tex. 84, 156 S.W.2d 963 (Tex.Sup.1941); Bumpass v. Bond, 131 Tex. 266, 114 S. W.2d 1172 (1938); Williams v. Rabb, 161 S.W.2d 121 (Tex.Civ.App.—Texarkana 1942, writ ref’d). Courts should seek to harmonize and give effect to all provisions of a contract so that none will be rendered meaningless. Benge v. Scharbauer, 152 *538Tex. 447, 259 S.W.2d 166 (1953); Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951); Parker v. Delcoure, 455 S.W.2d 339 (Tex.Civ.App.— Port Worth 1970, writ ref’d n. r. e.).

The majority’s construction renders meaningless the deed’s provisions indicating the grantor’s wish that the restrictions should be permitted to continue indefinitely. I cannot agree with this. In order to harmonize all provisions of the deed, the trial court interpreted paragraph (7) in conjunction with paragraphs (1) and (2) to allow indefinite extensions of the restrictions for periods of twenty-five years or less, so long as a majority of the owners on each street agree to do so. Considering the instrument in its entirety, I do not agree with the majority that this interpretation is incorrect as a matter of law. I think the ambiguity in the deed created an issue of fact to be resolved by the trial court. Appellant has attacked the trial court’s resolution of that fact issue only by “no evidence” points. I would, therefore, hold that we are bound by the well-settled rule that the judgment of a trial court will not be set aside if there is any evidence of a probative nature to support it, and a court of civil appeals cannot substitute its findings of fact for those of the trial court if there is any evidence in the record to sustain the trial court’s findings. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972 (1951). In determining this question the evidence must be viewed in the light most favorable to appellees, rejecting all evidence favorable to appellants. Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951). With these rules in mind, I believe that the language contained in paragraphs (1) and (2) is sufficient evidence to support the trial court’s finding as to the intention of the original subdivider. See Moore v. Smith, 443 S.W.2d 552 (Tex.Sup.1969).

I would affirm the trial court’s judgment.