115 S.W.2d 529 (Mo.App. 1938), Porter v. Johnson

Citation115 S.W.2d 529, 232 Mo.App. 1150
Opinion JudgeSPERRY, J.
Party NameJESSE L. PORTER ET AL., APPELLANTS, v. CARL R. JOHNSON ET AL., RESPONDENTS
AttorneyBowersock, Fizzell & Rhodes for appellants. L. Amasa Knox, Chas. H. Calloway and Carl R. Johnson pro se for respondents.
Judge PanelSPERRY, J. Campbell, C., concurs.
Case DateMarch 07, 1938
CourtCourt of Appeals of Missouri

Page 529

115 S.W.2d 529 (Mo.App. 1938)

232 Mo.App. 1150

JESSE L. PORTER ET AL., APPELLANTS,

v.

CARL R. JOHNSON ET AL., RESPONDENTS

Court of Appeals of Missouri, Kansas City

March 7, 1938

Appeal from the Circuit Court of Jackson County.--Hon. Ben Terte, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Bowersock, Fizzell & Rhodes for appellants.

L. Amasa Knox, Chas. H. Calloway and Carl R. Johnson pro se for respondents.

SPERRY, J. Campbell, C., concurs.

OPINION

SPERRY, J.

Page 530

[232 Mo.App. 1152] This is an action brought by plaintiffs below, who will be known here as plaintiffs, against Carl R. Johnson and Carrie Johnson, as defendants. The latter will be referred to in this opinion as defendants. Plaintiffs are the owners of certain tracts of land, particularly described in the petition, same being a part of the land described in a restrictive agreement hereinafter set out in full.

The owner of one parcel of the land mentioned in the restrictive agreement, and a signer of same, on October 7, 1935, sold and delivered possession of said property, same being located at 2602 Tracy, and described as:

The North 2 2/3 feet of the East 117.5 feet of lot 21, and the South 30 2/3 feet of the East 117.5 feet of lot 22, all in block 6, Porter Park, an addition to Kansas City, Jackson County, Mlissouri, to defendants, Carl R. and Carrie Johnson, persons of the Negro race. This sale to negroes was in violation of the restrictions. They entered into immediate possession and now occupy and claim title to said property. This they did with full knowledge of the restrictive [232 Mo.App. 1153] agreement. Plaintiffs prayed for relief by mandatory injunction, requiring defendants to vacate said property, and that their deed thereto be cancelled. Before conclusion of the trial two of the plaintiffs withdrew from the case as parties plaintiff, leaving these appealing plaintiffs. The case was tried in equity and the trial court refused plaintiffs the relief prayed for, or any relief, and entered judgment for defendants. From this judgment the remaining plaintiffs prosecute this appeal. The restrictive agreement above mentioned was pleaded and was in evidence. It is, in words and figures, as follows:

AGREEMENT.

The undersigned owners of land improved and unimproved described as follows:

The North 25 feet of Lot 14, all of Lots Fifteen (15), Sixteen (16), Seventeen (17), Eighteen (18), Nineteen (19), and Twenty (20), the South Fourteen (14) feet of Lot Twenty-one (21), and the East One hundred seventeen and one-half feet (117.5)

Page 531

of the North thirty-six feet (36) of Lot Twenty-one (21), and the East one hundred seventeen and one-half (117.5) feet of Lot Twenty-two (22), Block Six (6), Porter Park, an addition in Kansas City, Missouri, in Kansas City, Jackson County, Missouri and of various interests in said property hereby agree with each other and mutually bind themselves their respective heirs, successors and assigns the agreement of each being made in consideration of the agreement of each other to keep and observe the following restrictions with regard to the respective ownership use and disposition of said property.

1. No part of said property at said time shall be owned, occupied or used by or permitted or suffered to be owned, occupied or used by any person or persons of the Negro race or descent.

2. No part of said property shall be by any or either of the parties hereto their respective heirs and assigns or by anyone in their name or behalf conveyed, deeded, leased, willed, sold, rented or in anywise transferred to any person or persons of the Negro race or descent.

3. These restrictions shall remain in full force and effect for fifteen years from the date hereof and at the end of said period shall become automatically renewed and extended for an additional period of fifteen years, unless the persons owning a majority of the front feet abutting on the streets above described shall execute and acknowledge and cause to be recorded an instrument evidencing their election and intention that said restrictions shall not remain in force after said original period of fifteen years.

It is further agreed that the foregoing restrictions shall be inserted in all deeds, leases, deeds of trust and other conveyances and transfers [232 Mo.App. 1154] of any part of said property hereafter made by any party hereto, his heirs and assigns.

The restrictions herein set forth shall run with the land and bind the present owners their respective heirs, successors and assigns and all parties claiming by, through or under them and whether said restrictions be expressed in deeds thereof or not shall be taken to hold, agree and covenant with the owners of said lots their heirs, successors and assigns and with each of them to comply with and observe said restrictions, but no restriction herein set forth shall be personally binding on any corporation, person or persons except in respect to breaches committed during its, his or their seizen of or title to said land and the owner or owners of any of the above land shall have the right to sue for and obtain an injunction prohibitive or mandatory to prevent the breach of or to enforce the observance of the restrictions above set forth in addition to ordinary legal actions for damages or other relief at law or in equity and failure by the owner or owners of any of the lands above restricted to enforce any of the restrictions herein set forth at the time of its violation shall in no event be deemed a waiver of the right to do so thereafter."

The instrument was duly filed for record, and was recorded in the office of the Recorder of Deeds within and for Jackson County, Missouri, May 19, 1921.

Defendants' contention is that the restrictive agreement is not enforceable. Such a contract is one which the parties entering into it had a right to make; and it is not void because of public policy. [Koehler v. Rowland (Mo. Sup.), 205 S.W. 217, l. c. 220.] It is, therefore, valid and binding. [Stevens v....

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26 practice notes
  • 197 S.W.2d 617 (Mo. 1946), 39827, Matthews v. First Christian Church of St. Louis
    • United States
    • Missouri Supreme Court of Missouri
    • October 14, 1946
    ...176 S.W.2d 661; Thompson v. Langan, 172 Mo.App. 64, 154 S.W. 808; Scharer v. Pantler, 127 Mo.App. 433, 105 S.W. 668; Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529. (3) In order to prevent the enforcement of the deed restrictions in this case the burden is upon the defendants to prove ......
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri Supreme Court of Missouri
    • March 12, 1951
    ...the lots on 63rd Street was void unless it contained the unanimous consent of the owners of the entire addition. Porter v. Johnson, 115 S.W.2d 529, 232 Mo.App. 1150; Spahr v. Cape, 122 S.W. 379, 143 Mo.App. 114; Strauss v. J.C. Nichols Land Co., 37 S.W.2d 505, 327 Mo. 205; 18 C.J., p. 404, ......
  • 330 S.W.2d 595 (Mo.App. 1959), 7801, Hanna v. Nowell
    • United States
    • Missouri Court of Appeals of Missouri
    • December 19, 1959
    ...C.J.S. Deeds Sec. 163b, p. 1105; Hickey v. Greengard, Mo.App., 176 S.W.2d 661; Pavey & Orr v. Burch, 3 Mo. 447; Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529; Andrews v. Metropolitan Bldg. Co., 349 Mo. 927, 163 S.W.2d 1024. [5] 26 C.J.S. Deeds Sec. 163, p. 1094, et seq.; Kraemer v......
  • 118 S.W.3d 185 (Mo.App. W.D. 2003), WD 61418, Country Club Dist. Homes Ass'n v. Country Club Christian Church
    • United States
    • Missouri Court of Appeals of Missouri
    • September 2, 2003
    ...when there is no ambiguity in the language used, then there is no room for construction." Id. at 898 (quoting Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529, 533 (1938)). Instead, " '[t]he plain every day meaning of the language of the Page 190 contract governs.' " Id. (......
  • Request a trial to view additional results
26 cases
  • 197 S.W.2d 617 (Mo. 1946), 39827, Matthews v. First Christian Church of St. Louis
    • United States
    • Missouri Supreme Court of Missouri
    • October 14, 1946
    ...176 S.W.2d 661; Thompson v. Langan, 172 Mo.App. 64, 154 S.W. 808; Scharer v. Pantler, 127 Mo.App. 433, 105 S.W. 668; Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529. (3) In order to prevent the enforcement of the deed restrictions in this case the burden is upon the defendants to prove ......
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri Supreme Court of Missouri
    • March 12, 1951
    ...the lots on 63rd Street was void unless it contained the unanimous consent of the owners of the entire addition. Porter v. Johnson, 115 S.W.2d 529, 232 Mo.App. 1150; Spahr v. Cape, 122 S.W. 379, 143 Mo.App. 114; Strauss v. J.C. Nichols Land Co., 37 S.W.2d 505, 327 Mo. 205; 18 C.J., p. 404, ......
  • 330 S.W.2d 595 (Mo.App. 1959), 7801, Hanna v. Nowell
    • United States
    • Missouri Court of Appeals of Missouri
    • December 19, 1959
    ...C.J.S. Deeds Sec. 163b, p. 1105; Hickey v. Greengard, Mo.App., 176 S.W.2d 661; Pavey & Orr v. Burch, 3 Mo. 447; Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529; Andrews v. Metropolitan Bldg. Co., 349 Mo. 927, 163 S.W.2d 1024. [5] 26 C.J.S. Deeds Sec. 163, p. 1094, et seq.; Kraemer v......
  • 118 S.W.3d 185 (Mo.App. W.D. 2003), WD 61418, Country Club Dist. Homes Ass'n v. Country Club Christian Church
    • United States
    • Missouri Court of Appeals of Missouri
    • September 2, 2003
    ...when there is no ambiguity in the language used, then there is no room for construction." Id. at 898 (quoting Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529, 533 (1938)). Instead, " '[t]he plain every day meaning of the language of the Page 190 contract governs.' " Id. (......
  • Request a trial to view additional results