¶1(dissenting).
¶2I respectfully dissent. I do not agree that this case is controlled by MacDonald v. Painter, supra. The significant factual situation is too dissimilar. In MacDonald, the restrictive covenant says nothing about one residence, while it is clear in the case before us that only one residence can be constructed upon the lot in question. The Supreme Court in MacDonald does not say a duplex is one residence. (The conclusion reached by the majority in the case before us.)
¶3In my opinion, MacDonald merely tells us that if the restrictive covenant prohibits the use of property for anything except “residence purposes” that the erection of multiple dwellings is not forbidden. See the explanation at page 182 together with the quotation from 14 A.L.R.2d 1381.
¶4In the case before us the restriction says specifically that only one residence can be erected upon this lot. In MacDonald, the Supreme Court found the use of the term “residences” shows an intent to permit more than a single residence. No such wording appears in the restriction before us.
¶5I would hold that this case is controlled by Green v. Gerner, 283 S.W. 615 (Tex.Civ.App.—Galveston, 1926) judgment affirmed by Tex.Com.App., 289 S.W. 999 (1927). In this case the restriction was “ ‘no building other than one residence with the necessary and appurtenant out buildings and improvements shall occupy the lots herein sold’ ” (at 283 S.W. 616). The Court of Civil Appeals held that under this restriction an apartment house with eight living units if erected would violate the covenant, even though it was contended that the apartment house was for residential purposes only, was but one building, and was not obnoxious to the provision in the deed.
¶6It is clear to me that the Supreme Court in MacDonald, when discussing Green v. Gerner at page 184, was not intending to overrule Green v. Gerner, but merely to distinguish it. As stated above the term “one residence” is the difference between these two lines of decisions. Apparently, there is no case in Texas holding that a duplex is “one residence.”