
    Dillon, Appellant, v. Gaker, Appellee.
    (Decided May 24, 1937.)
    
      Mr. Leo Weinberger, for appellant.
    
      Mr. Daronne R. Tate, for appellee.
   Hamilton, J.

This case was re-argued on the question as to whether the case was one in chancery and appealable on questions of law and fact, or one of law.

On the conclusions reached, the judgment in the case will be the same whichever way the case is presented. However, it was desired that the court pass upon the character of the case.

One member of the court is of the opinion that declaratory judgments are provisions of the statute, and that they are of necessity based on questions of law only.

The majority of the court is of the opinion that the character of the case upon which a declaratory judgment is sought determines whether it is a chancery or a law case.

In the instant case the contract upon which the declaratory judgment is sought is in writing, and sets forth a restriction contained in the deed. This restriction is the basis of the action. If the decision resulted in a decree finding the restrictions in the deed enforceable, it would determine the. right to maintain a mandatory injunction if a violation of this restriction was attempted. The matter primarily involves the construction of a written agreement. All of these questions have always been cognizable in chancery. See, Kochs, Admx., v. Kochs, 49 Ohio App., 327, 197 N. E., 255; S. S. Kresge Co. v. B. D. K. Co., 52 Ohio App., 101, 3 N. E. (2d), 529.

The majority of the court being of the opinion that the character of the case determines the standing, notwithstanding a declaratory judgment is sought, makes the case appealable on questions of law and fact.

A decree may be entered in accordance herewith.

Decree accordingly.

Matthews, J., concurs in the conclusion that the action is a chancery case, but dissents on other grounds.

Ross, P. J.,

dissenting from the conclusion that action is one in chancery. This proceeding is presented to the court upon rehearing of a motion to dismiss the appeal which has been taken on law and fact. A bond was given. The original action was a proceeding for a declaratory judgment under Sections 12102-1 et seq., of the General Code.

Section 12102-1, General Code, provides as follows:

“Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.”

The provisions of this section and Section 12102-7, General Code, render the proceedings in the Common Pleas Court subject to review upon appeal on questions of law. The statute does not and cannot give this court jurisdiction upon appeal on questions of law and fact unless the original proceeding is a chancery case.

All through these sections the final determination of the proceeding is styled a “declaration,” which, in effect, is nothing more than á mere finding by the court. Would this court consider upon appeal on questions of law and fact a mere finding in a chancery case, where no final decree was entered? I am sure it would not. The act itself provides for further action by the parties to give such finding vitality as a judgment. Section 12102-8, General Code.

It is my view that such a special statutory proceeding, unknown to the chancery courts, can not under any circumstances, regardless of the character of the relief sought, be a chancery case. In so concluding, I am compelled to reluctantly disagree with the conclusions of Judge Montgomery and his associates, of the Fifth Appellate District, as announced in the case of Kochs, Admx., v. Kochs, 49 Ohio App., 327, 197 N. E., 255, and with the conclusions reached in S. S. Kresge Co. v. B. D. K. Co., 52 Ohio App., 101, 3 N. E. (2d), 529. The special proceeding ending in a mere finding of rights is not “a case” in any sense of the term. 1 Ohio Jurisprudence, Section 15, page 312 et seq. No such an anomaly was known or recognized in equity practice.

Section 11421-4, General Code, provides:

“Parties to a question which might be the subject of a civil action, on filing an affidavit that the controversy is real and the proceeding in good faith to determine their rights, may agree’upon a case containing the facts upon which the controversy depends, and present a submission of it to any court of competent jurisdiction, which shall hear and determine the case, and render judgment as if an action were pending.”

This illustrates the character of a proceeding, which, if chancery in its nature, might form the basis for an appeal on questions of law and fact within the purview of Section 6 of Article IV of the Constitution of Ohio. The differences between a declaratory judgment proceeding, ending in a mere finding, and a case in which a judgment of a court of competent jurisdiction, effective in all respects as such, is entered, seems to me most apparent. I regretfully disagree upon this point with the conclusion of my associates, and with the judges of the Fifth and Seventh Districts, for all of whose opinions I have the utmost respect.

I, therefore, dissent from the majority conclusion, necessitating a determination that the instant proceeding involves the consideration of a chancery case.

The majority of the court having concluded otherwise, I consider this phase of the matter foreclosed from further consideration on my part and now come to consider the case as the majority of the court has found it to be.

Upon this phase of the case I concur with Judge Hamilton in finding the equities in favor of the defendant. Were the case here upon questions of law merely (as it was considered upon the original hearing) I should, for the reasons given in the majority opinion upon the original hearing, affirm the judgment.

Matthews, J.,

dissenting. I concur in the conclusion that this is a chancery case and appealable on questions of law and fact to this court, but dissent from the conclusion reached by the court on the merits for the following reasons.

I agree with my associates that the meaning of the phrase “one residence,” as used in the plaintiff’s contract is a building constructed for tbe purpose of serving as a dwelling place of one family, and that a building constructed for tbe purpose of serving as tbe dwelling place of four distinct families, living separate and apart from one another, is outside of its meaning.

Tbe ground of my dissent is that tbe defendant bas no cause of action upon this covenant under tbe evidence shown by tbe record.

It is not sufficient to support an action by one lot owner against another to show that each bas contracted with a common grantor. It is incumbent upon any such lot owner to go further and prove that there was a general plan to restrict the use of the property in the subdivision for the use and benefit of all grantees, and that at the time be and the defendant purchased their property they knew of that general plan and its purpose. If the evidence is not in bis chain of title, be may prove the facts by evidence extraneous thereto. Mere knowledge that there are restrictive covenants running to the common grantor is not sufficient to satisfy the rule. There must be knowledge that the restrictions were intended to inure to the benefit of other grantees. This was so held in Kiley v. Hall, 96 Ohio St., 374, 117 N. E., 359, L. R. A., 1918B, 961, the first paragraph of the syllabus of which is:

“Tbe purchaser of a lot in an allotment whose deed contains restrictions as to tbe use of tbe lot is not chargeable from that fact alone with notice that like restrictions are contained in tbe deeds to other purchasers of lots in tbe allotment.”

At page 382, the court said:

“Each purchaser, of course, knew that bis grantor, Kyle, could enforce tbe observance of these restrictions, but we do not know upon what theory tbe covenant in bis deed would advise him that be owed a similar duty to tbe other lot owners. So there is nothing on tbe recorded plat or in bis deed that would charge plaintiff in error when he purchased his lot with notice of a general plan or with notice that the restrictions contained in his deed were for the benefit of the other lot owners.”

In Adams v. Donovan, 97 Ohio St., 83, 119 N. E., 252, the court, at pages 84 and 85, says:

“Evidence that a lot owner in an allotment notified a -proposed purchaser of a lot in the same allotment, that the use of the lot he proposed to purchase was restricted to single residence purposes only, does not sustain an allegation of the petition that the purchaser was notified before purchasing the lot of a general plan of uniform restrictions upon every lot in the entire allotment.
“ Such, evidence does not charge a purchaser with notice that like restrictions are contained in the deeds of other purchasers of lots in the allotment, or that such restrictions are for the benefit of the owners of the other lots therein. Kiley v. Hall, 96 Ohio St., 374.”

It is my judgment the evidence falls far short of proving a general uniform plan to restrict the use of this property. And I recall no evidence in the case at bar tending to prove that either the plaintiff or defendant purchased their lots with knowledge of a general uniform plan to restrict the use of the property in the subdivision, imposed for their benefit. The agreed statement certainly contains nothing whatever on this subject. If there should be some evidence, the doubt should be resolved in favor of the free use of the property. In Hunt v. Held, 90 Ohio St., 280, 107 N. E., 765, L. R. A., 1915D, 543, the court held as stated in the syllabus:

“1. Where the right to enforce a restriction contained in the conveyance as to the use of the property conveyed is doubtful all doubts should be resolved in favor of the free use thereof for lawful purposes by the owner of the fee.”

The failure of proof of this material fact makes it impossible, in my opinion, for the court to make any declaration as to the rights of these parties. Therefore, the action should be dismissed.  