Realty Investments, Inc. v. Goodwin , 1971 Tenn. App. LEXIS 248 ( 1971 )

ON PETITION TO REHEAR

A courteous Petition to Rehear has been filed by the appellee suggesting error in our previous Opinion in the matter.

The Petition alleges, among other things, that in the Court’s Opinion of date November IS, 1971, it is stated “the buyer submitted the restrictions and they were incorporated verbatim on the plat” (emphasis supplied by petitioner) and that a comparison between Exhibit 26, which contains the subdivision restrictions submitted by Realty, and the recorded plat prepared by defendants shows material (emphasis ours) differences between the two.

We have again examined Exhibit 26, which is a poor, almost illegible reproduction of the original instrument used in the trial, and find that the petitioner is partially correct. On the recorded plat the misspelling of the word “by” has been corrected from the form “ay” used in Exhibit 26 and the word “or” has been substituted for the word “and” in one instance. Also, Exhibit 26 uses the words “developers of the subdivision” while the recorded plat uses the words “developer of the subdivision”. Furthermore, Exhibit 26 recites that the termination date of the covenants is on January 1, 1990, while the covenants as placed on the plat terminate July 1, 1990. (The recorded plat is dated July, 1965). Therefore, our Opinion is incorrect wherein it states that the restrictions submitted by the buyer were incorporated verbatim on the plat.

However, we disagree with petitioner’s conclusion that such changes were material. We hold that such changes were not material and were not to petitioner’s detriment. In the Opinion of date November 15, 1971, the words “without material change” are to be substituted for the word “verbatim”.

The balance of the Petition to Rehear raises no issue not heretofore considered by the Court.

The Opinion of date November 15, 1971, is modified as herein noted and the Petition to Rehear is respectfully denied.

CARNEY, P. J., and MATHERNE, J., concur.