Missouri Province Educational Institute v. Schlecht

Decision Date29 March 1929
Citation15 S.W.2d 770,322 Mo. 621
PartiesMissouri Province Educational Institute, Appellant, v. Joseph A. Schlect et al
CourtMissouri Supreme Court

Appeal from Circuit Court of City of St. Louis; Hon. Victor H Falkenhainer, Judge.

Reversed and remanded (with directions).

Leahy Saunders & Walther for appellant.

(1) Restrictions upon the use of real property being in derogation of the established policy of the law, permitting the free use and enjoyment of property, are strictly construed. Berry, Restr. on Real Property, p. 54; 4 Thompson Real Property, sec. 3361; Kitchen v. Hawley, 150 Mo.App. 497; Noel v. Hill, 158 Mo.App. 426; Bolin v. Tyrol Inv. Co., 273 Mo. 261; Conrad v. Boogher, 201 Mo.App. 644; Whittaker v. Inv. Co., 197 Mo.App. 377; Charlot v. Merc. Co., 248 Mo. 625; Van Duyn v. Chase & Co., 149 Iowa 222; Hutchinson v. Ulrich, 145 Ill. 336. (2) The burden of proof is on the person claiming the benefit of restriction to show that the particular restrictions were intended for the benefit of his land. Sharp v. Ropers, 110 Mass. 381; Hay v. St. Paul M. E. Church, 196 Ill. 633; Lowell v. Lowell, 153 Mass. 530; Hemsley v. Hotel Co., 62 N.J.Eq. 164, affirmed 63 N.J.Eq. 804; McNichol v. Townsend, 73 N.J.Eq. 276. (3) There has never been any express covenant restricting the use of plaintiff's land. The claim of defendants that plaintiff's land is subject to restrictive covenants in favor of the lots owned by defendants is based upon the clause, "subject to restrictions and conditions as of record in said block," in one of the prior deeds in plaintiff's chain of title. The city block in which plaintiff's undivided tract of land is situated comprised, in addition to plaintiff's land, three lots owned by the defendants, and which lots are part of Compton Heights Subdivision. Plaintiff's property is not part of said subdivision. The deeds through which defendants acquired their lots by mesne conveyances from the subdivision company contain various restrictive covenants as to building lines, character of buildings and use of the property. It is claimed by defendants that by the clause, "subject to restrictions and conditions as of record in said block," it was intended to subject the plaintiff's property to the restrictive covenants in the conveyances through which defendants acquired their lots in Compton Heights Subdivision. It does not require resort to the strict rule of construction applicable in cases of this class, to determine that it was not the intention to make the general restrictive covenants of the Compton Hill Improvement Company deeds applicable to plaintiff's property. The wording of the restrictive covenants in the deeds to the defendants' lots is such that the covenants could not reasonably be made to fit plaintiff's property. The said covenants are clearly intended to be mutual covenants between the owners of the lots in the Compton Heights subdivision and are wholly inapplicable to a parcel of ground not divided into lots and situated outside of the boundaries of the subdivision. (4) The language of the deed construed by the court, "Subject to restrictions of record in said block," constitutes merely an exception to the warranty as to any existing easement of record upon the particular land conveyed. This language does not purport to impose new obligations or burdens not then existing against the property. "Subject to," being words of qualification, must be regarded as merely precautionary and not as creating a new right. Donahoe v. Turner, 204 Mass. 274; Richter v. Distelhurst, 116 A.D. 269; Van Duyn v. Chase & Co., 149 Iowa 222. (5) Where the grantor has no adjoining estate, and the only persons for whose benefit the restriction can operate is a third person owning property in the vicinity, a restriction, though expressly imposed for the benefit of the land of such third party, is void for want of consideration and mutuality. Richter v. Distelhurst, 116 A.D. 269; 4 Thompson, Real Property, sec. 3403; Coughlin v. Barker, 46 Mo.App. 67. (6) Since defendants did not purchase their land in consideration of the restrictive covenants contained in the Carpenter deed, equity will not create a right to enforce the restriction in their favor. Tulk v. Moxhay, 2 Ph. Ch. 774; Seidel v. Mills, 84 N.J.Eq. 285; Renals v. Cowlishaw, L. R. 9 Ch. Div. 125; Hays v. St. Paul M. E. Church, 196 Ill. 633; Roberts v. Schull, 58 N.J.Eq. 396; Mulligan v. Jordan, 50 N.J.Eq. 363; Doerr v. Cobbs, 146 Mo.App. 342; Summers v. Beeler, 90 Md. 474.

Frank X. Hiemenz for respondent.

(1) Matters contained in a prior document, particularly if the document is of record in a public office, referred to in a subsequent document, become by such reference a part of the subsequent document to all intents and purposes as if written therein. (2) The Carpenters could legally contract with Bollman in the sale of their property to him, for the benefit of third persons and such third persons can enforce the contract. (3) The Carpenters in selling their lot to Bollman were privileged to insert in the deed conveying the same any lawful terms, limitations, conditions or covenants that Bollman, the grantee, was willing to accept, even if the conditions, limitations or covenants inured to the benefit of third persons. (4) A grantee accepting a deed is bound by its terms, limitations and conditions to the same extent as if he had signed the same as a party thereto. Bollman was bound by the terms of the Carpenter deed and took the same burdened with the restrictions placed thereon by the Carpenters. The Carpenters could insert any lawful restriction, condition or covenant they saw fit. Bollman could accept it or reject it as he saw fit. In the instant case Bollman accepted it. The covenant, therefore, was one by mutual consent or acquiescence of the parties to the deed. This furnishes a sufficient consideration in law for the restrictive covenants inserted by the Carpenters, and it is immaterial that the benefit of the covenant inured to third persons instead of directly to the Carpenters. The covenant can be construed as a reservation by the Carpenters in favor of the defendants or their successors in interest. (5) The fact that the Carpenters owned no other property in the immediate vicinity of the lot conveyed to Bollman and after having parted with their title had no other property to protect, is conclusive evidence that they intended the covenant to inure to the benefit of their neighbors, the defendants hereto, as owners of the remainder of the block in which the Carpenter lot is situate. Carpenter, so testified. Meriwether v. Jay, 85 Mo.App. 634. (6) The question as to whether or not the covenant in the Carpenter deed inures to the benefit of all of the lot owners in the subdivision known as Compton Heights, is not involved in this case. The sole question is: Does the covenant inure to the three defendants, the only parties defendant hereto. (7) The use of real property may be restricted by the use of any words or phrases evidencing the intention of the grantor to so restrict. Express covenants are not absolutely necessary, nor need the words or phrases appear in any particular part of the deed; the intention of the grantor must be gathered from the whole instrument. Milligan v. Balson, 264 S.W. 73.

Lindsay, C. Seddon and Ellison, CC., concur.

OPINION
LINDSAY

This is a suit to quiet title. The plaintiff, a corporation, sought to have it adjudged that certain real estate owned by the plaintiff in the city of St. Louis, was not subject to the restrictions applicable to the adjoining lots owned by defendants. The lots of defendants are a part of a restricted residential subdivision known as Compton Heights, which includes several blocks and parts of blocks. The property of plaintiffs is not situated in that subdivision. to the parcel of land owned by plaintiff, as not being a part of said subdivision; and sets forth the grounds of the claim of defendants that under a deed in plaintiff's chain of title, plaintiff's property is subject to the restrictions applicable to the lots in said subdivisions. Defendants, by their answer, and upon the facts alleged in the petition, claim an interest in the plaintiff's property; and by way of affirmative relief, ask that the restrictive covenants applicable to their lots as a part of Compton Heights Subdivision, be decreed to be applicable to plaintiff's property.

A statement of all the allegations of the petition is not necessary, since a statement of the evidence discloses the issue made by the pleadings. The property of the plaintiff was acquired through mesne conveyances from one George O. Carpenter, who acquired it in 1882. The property is a parcel of ground in what was then block 1361, in the city of St. Louis. This parcel extends from north to south, 330 feet, and from east to west, 301 feet and six inches. It includes approximately two-thirds (the north two-thirds) of block 1361. The then remaining portion of said block 1361 is the ground owned by defendants. There is no street or alley between the plaintiff's property and defendant's lots. Carpenter, in 1882 and 1883, improved the property owned by him, and lived thereon until 1906. However, in 1888 title was transferred by him to his wife Caroline Carpenter, and in 1906 they conveyed the property to one Bollman. There were no restrictions whatever upon the Carpenter property, until, and unless, that property was subject to the restrictions applicable to property in the Compton Heights Subdivision, by the terms of the deed of the Carpenters to said Bollman, plaintiff's grantor.

The Compton Heights Subdivision was laid off as an exclusively residential district, at some time after Carpenter improved and began to live upon his property, and before the...

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