
    No. 61
    CONTINENTAL REALTY CO. V. ROSE KATZ, et al
    Cuyahoga County Court of Appeals.
    No. 4050,
    decided Dec. 18, 1922
    REAL ESTATE — Building restrictions — May be waived by laches — Notice to husband not communicated to wife owner, not sufficient.
    Appeal from, Cuyahoga County Court of Common Pleas
    Attorneys — Wilkin, Cross & Daoust, for plaintiff; Mooney, Hahn, Looser & Keough, for defendants.
   VICKERY, J.

Epitomized Opinion

The plaintiff sold lots in a restricted real estate allotment to defendant Katz, and the deed contained a covenant that they should be used for residence purposes only. Upon them the construction of a two room structure, the business character of which was plainly visible. The Common Pleas granted an injunction and restrained the operation of the. stores, or other business on the land. The Court of Appeals decided that the plaintiff would be entitled to the relief prayed for, were it not for the. question of laches, raised by defendants.

(1) When the building was completed, about Aug. 1, the defendant Katz, the owner, leased one of the rooms to a person who stocked it with groceries and occupied it, Later, Aug. 23, she sold the latter to one of the defendants, Weider, for $6600'. There is no record to show but that W. had no kowledge of the restrictions but that, in this respect, bought the property and carried, on the business in good faith. Under the circumstances it would be inequitable for the Realty Co. to permit the building to go on, so that a person not knowing anything about the circumstances, could become a bona fide owner of the property by paying the full value thereof in money, to use it for the same purpose it was notoriously being used for. As the plaintiff was guilty of laches to such an extent it lost whatever right it had against the particular defendant Weidner.

(2) The fact that after construction of the building was begun, a conversation was had between the realty company and the husband of Mrs. Katz and a letter was given to him, which apparently he did not understand, but which he never communicated to his wife, but then proceeded with the building unmolested by the plaintiff, who knew all the time who the owner of the property was, and permitting the situation to continue, did not avail the plaintiff, and the injunction below will be dissolved.  