Appeal, No. 283, Jan. T., 1954, from decree of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1952, No. 778, in case of Jacob Kauffman et al. v. Samuel T. Dishler et ex. Decree reversed; reargument refused January 20, 1955.
Martin J. Vigderman, with him Samuel H. Landy and Freedman, Landy & Lorry, for appellants.
Benjamin Fertik, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
The question concerns the scope of the term "house" as used in a building restriction in a deed.
The parties, being in agreement as to all the essential facts, entered into a stipulation in regard to them. It appears that one S. Leroy Wingate was the owner in 1923 of a large tract of vacant land known as "Wood-crest" in what is now the 50th Ward of the City of Philadelphia. It covers an area of about six city blocks, extending from Vernon Road on the south to Mt. Airy Avenue on the north and from Forrest Avenue on the east to Rodney Street on the west. On each of the lots therein that were sold and conveyed from time to time Wingate imposed the following building restriction: "That not more than one (1) house, same to be detached or semi-detached, and private garage shall be erected on each lot with a frontage of at least 24 feet ...." Defendants became the purchasers of a portion of the tract, namely, the block bounded by Gorgas Street on the north, Vernon Road on the south, Thouron Avenue on the east and Gilbert Street on the west. They have built 14 semi-detached two-story houses along the west side of Thouron Avenue between Gorgas Street and Vernon Road, 12 of which are not involved in the present controversy; the issue concerns only the two end structures at the southwest corner of Thouron Avenue and Gorgas Street and the northwest corner of Vernon Road and Thouron Avenue respectively. These two are identical in outward appearance with all the others except that
they are 3' 6" wider and 6' 2" longer in depth and that they each have two entrances on the Thouron Avenue front and a basement entrance on the side street; one of the front entrances leads to a stairway directly up to the second floor, so that each of these properties contains a basement apartment, a first floor apartment, and a second floor apartment, thus providing for occupancy by three families.
Plaintiffs own and occupy the house at the northwest corner of Thouron Avenue and Gorgas Street and brought the present bill in equity for an order on defendants to discontinue the erection of houses for occupancy by more than one family. The two corner structures were 85% completed when the bill was filed, but plaintiffs allege that they were misled and deceived by defendants and did not become aware until immediately before they began their action that those properties were to contain three-family apartments. The court below entered a decree in favor of plaintiffs, prohibiting the building by defendants of any three-unit apartment house. Defendants appeal from that decree, contending that the building restriction did not prevent them from constructing "houses" accommodating more than a single family.
In St. Andrew's Church's Appeal, 67 Pa. 512, 518, 519, where there was a restriction that no building should be built to be used for purposes other than as and for a private dwelling-house, it was held that the covenant was "directed against the building alone, not the subsequent use, and when a building is lawfully erected on either of the lots, so far as that building is concerned, the covenant is at an end." It was said (p. 520), that ...