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253 Ark. 476

487 S.W.2d 615

White v. Lewis

Supreme Court of Arkansas

Decided November 27, 1972

Supreme Court of Arkansas · decided 1972-11-27

Key passage — most relied on by later courts

“"All of the land described herein and any interest therein shall be held and owned subject to and in conformity with the following restrictions and covenants which, subject to being amended or cancelled as provided hereinafter, shall be and remain in full force and effect for twenty-five years, to-wit: "No lot shall be used except for residential purposes. No building shall be erected, altered, placed, or permitted to remain on any lot other than one one-family or two-family dwelling not to exceed one and one-half stories in height and a private garage for not more than two cars. "These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five years from the date these covenants are recorded, after which said covenants shall be automatically extended for successive periods of 10 years unless an instrument signed by a majority of the owners of the lots has been recorded, agreeing to change said covenants in whole or in part."”

quoted by 2 later decisions, including Vasquez v. Justice, 505 So. 2d 382 - Hill v. Rice

“[7The covenants and restrictions of the Bill of Assurance shall be binding for a period of 25 years from the date of recording, after which time the covenants and restrictions shall be automatically extended for successive periods of ten years unless an instrument signed by a majority of the owners has been recorded agreeing to change or terminate the covenants and restrictions.”

quoted by 2 later decisions, including Barber v. Watson, 2009 Ark. App. 225 - Rausch Coleman Homes, LLC v. Brech

Good law ✅— No negative treatment on recordhow we know

Decided 1972-11-27

How this case has been cited

Cited by 28 later decisions — most recently August 2009 · most notably McGuire v. Bell (1988), Barber v. Watson (1997)

28 state decisions

1001972198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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John A. Fogleman, Justice,

¶1dissenting. I might readily agree with the construction given the bill of assurance by the chancery court and the majority if the last paragraph quoted stood alone. Since it does not, I cannot. Reading the introductory paragraph leads me to only one conclusion, i.e., that the restrictions and covenants can be amended by a majority within the initial 25-year period as well as thereafter. If this were not the intent the words “subject to being amended or cancelled as provided hereinafter” in the first paragraph would have been omitted and the bill would then have the exact meaning ascribed to it by the majority. But we are not at liberty to read words out of the instrument and should recognize that there was some purpose for inserting them. It should be noted that the first paragraph does not say, as it might if the majority’s construction is correct, that the restrictions and covenants shall be and remain in full force and effect for 25 years and thereafter be subject to change.

¶2It seems to me that the word “as” is used in the conjunctive sense, that is, meaning in the same way or manner. Thus the introductory clause should be read as follows:

All of the land described herein and any interest therein shall be held and owned subject to and in conformity with the following restrictions and covenants which, subject to being amended or can-celled in the same manner provided hereinafter, shall be and remain in full force and effect for 25 years***.

¶3Thus, the only restriction on the change relates to the manner in which it is to be accomplished and imposes no limitation on time. The manner provided is by an instrument signed by a majority of the owners of the lots.

¶4I would reverse the decree.

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