Grossman v. Hatley

HOWARD, Judge

(dissenting).

I am unable to agree with the majority opinion. The rule cited by the majority in Palermo v. Allen, supra, and R & R Realty Co. v. Weinstein, supra, is subject to a proviso:

“This rule of strict construction, however, obtains only where the parties have failed to express their meaning with sufficient clarity to enable the court to say that the construction of the deed is plain and admits of no doubt; the rule will not be applied to defeat the obvious purpose of the restriction, or the obvious *586intention of the parties, even though not precisely expressed, nor does it require an unnatural and strained construction of the words used; and before giving effect to the rule the court will have recourse to every aid, rule, or canon of construction to ascertain the intention of the parties, since it is the duty of courts to enforce, not to make, contracts.” 26 CJ.S. Deeds § 163.

There are other rules of construction which are also applicable to this case. The intention of the parties must be gathered from the entire context, rather than from isolated words. Barber v. Winter, 208 Ga. 712, 69 S.E.2d 249 (1952); Becker v. Arn-feld, 171 Colo. 256, 466 P.2d 479 (1970).

Restrictions which are ambiguous when applied to the facts may be interpreted in the light of a general plan. Nance v. Woldrop, 258 S.C. 69, 187 S.E.2d 226 (1972).

The covenant in question reads:

“Said property shall be subject to any and all rights which the County of Pima and/or the City of Tucson may acquire through dedication or by the filing or recording of maps and plats of said property.”

Dissecting the paragraph at issue and construing it with the entire five pages of comprehensive restrictions, it is clear that the intent is to give the grantor the right to dedicate the property and not the grantee. First, dedication by means of filing maps and plats can only be accomplished by the owner of a subdivision and not by an individual lot owner. A.R.S. § 9_474(A) and A.R.S. § 9-474(C). The conjunction of the word “dedication” with a phrase applicable only to the owner of land which is to be subdivided convinces me that paragraph 23 is inapplicable to the grantees of the individual lots. This is especially so when one considers the entire document. Tucson Country Club Estates is an exclusive subdivision in Pima County. The restrictions are numerous and they are obviously meant to maintain an exclusive area of single family residences. The construction adopted by the majority defeats the obvious purpose of the restrictions and creates an absurdity. If the majority opinion is correct, a grantee can dedicate his land to the city or county for use as a zoo or multi-story governmental building. Such an intent is clearly not to be gleaned from the entire set of restrictions.

The majority claims that since maps and plats had already been filed, paragraph 23 would be rendered meaningless if it is not given the construction they advocate. That is just the point. There is a latent ambiguity permitting the introduction of parole evidence as to the intention of the grantor. Summary judgment is at this time premature.

I would reverse and remand for further proceedings.