Thompson v. Langan

Decision Date01 March 1913
PartiesTHOMPSON et al. v. LANGAN et al.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Suit by Alice S. Thompson and others against William J. Langan and others. Judgment for defendants, and plaintiffs appeal. Reversed.

This suit was instituted by plaintiffs, appellants here, to enjoin the erection of an apartment house first, then of a hotel on two lots in Hamilton Place, the lots being numbers 1 and 2 of city block 4542 of the city of St. Louis, each lot fronting fifty feet on the south side of Von Versen avenue, by a depth of a hundred and thirty-five feet, the corner lot, lot number 1, being on the southwest corner of Von Versen and Hamilton avenues. At the time of the institution of the suit, Mrs. Honora McGowan appears to have been the owner of both lots but since its institution she conveyed them to one Robert W. Bidwell, who afterwards conveyed them to William J. Langan, the latter holding the title in trust for Robert W. Bidwell and Mrs. McGowan. These were made defendants. Another defendant, Charles E. Bradley, is the trustee in a deed of trust given upon the property since the suit was instituted, while the defendant Thomas A. Bidwell, while interested in the property, as it is charged, as an owner, is the architect and contractor for the erection of the building proposed to be erected upon these lots. Mrs. McGowan died pending this suit, and her death being suggested, William J. Langan was made a party as executor of her estate, Margaret Langan also being made a party and she as well as the executor entered appearance without process.

On the 19th of November, 1909, defendant Thomas A. Bidwell, the contractor, took out a permit from the proper city officer of the city of St. Louis, for the erection of an apartment or tenement building on these lots. On the 23rd of November of the same year, plaintiffs caused a notice to be served, addressed to Mrs. McGowan and Thomas A. Bidwell and to all others interested in these lots 1 and 2, to the effect that protest was entered by the parties represented in the notice, some eighteen property holders in Hamilton Place, against the erection of an apartment building on the lots, further notifying them that if any work was continued on the proposed erection of such building, proceedings to enjoin its erection would be instituted in the circuit court of the city of St. Louis. On December 7, 1909, a notice of lis pendens was filed in the office of the recorder of deeds of the city, advising all parties interested in these lots that a suit had been or was to be filed in the circuit court of the city of St. Louis, giving the nature of the suit. This suit was instituted on the 8th of December and afterwards, on the 17th of March, 1909, a second notice of lis pendens was filed to bring in all parties who had been brought into the case by amendment as parties defendant, an amended petition having been filed on the 16th of March, 1909. It further appears that at or about the time of the institution of this suit Thomas A. Bidwell amended the application for a building permit, by substituting a hotel for an apartment house, filing revised plans for that kind of a structure.

In the amended petition upon which the case was tried, it is set up that on January 2, 1887, one George W. Gray conveyed to Allemand and Nelson, as trustees for persons named in the deed, a tract of ground thereafter subdivided and known as Hamilton Place, with authority in the trustees to subdivide the same and dispose of the lots into which it might be subdivided; that afterwards, on the 24th of February, 1887, these trustees duly filed a plat of Hamilton Place, subdividing the property into streets, alleys, blocks and lots. As so laid off Hamilton Place was bounded on the north, in part, by Clemens Place and, in part, by what is called Clemens Place extension, on the south by Delmar avenue, on the east by Hamilton avenue, in part, and, in part, by Clemens Place extension, and on the west by what was then called Delmar but now Hodiamont avenue. Three streets extended through Hamilton Place, running east and west, the streets respectively Von Versen, Clemens and Cates avenues. It was separated from Clemens Place on the north by a "road," as it is called on the plat. The place extends for three hundred and thirty-two feet along Delmar, along Von Versen for about eleven hundred and twenty feet, along Clemens about thirteen hundred and seventy feet, along Cates about eight hundred and fifty feet, and along the road at the north about nine hundred and sixty feet. When we hereafter refer to Delmar avenue we are referring to that avenue as it is now known and designated, which lies to the south of Hamilton Place, and not to the old part of Delmar which ran along the western side of Hamilton Place between that and the Wabash Railroad Company's right-of-way. Hamilton Place as laid out, it is averred, was laid out as a high-class, restricted, residence district, and to carry out that intention the proprietors conveyed all of the lots in it, including those now belonging to plaintiffs and defendants, subject to certain restrictions: First, a building line was established, that along the north line of Cates avenues being thirty feet from that avenue; on the north and south lines of Clemens and Von Versen avenues, the building line was established at forty feet from the lines of those avenues, it being provided that no building or fence constructed of lumber more than two feet in height should be erected between these building lines and the line of the avenues. Second, no dwelling should be erected on any lots in the place whereof the main part was less than two stories in height, "nor shall there be erected more than one dwelling on each fifty feet of said realty except on lots fronting on the north line of Delmar avenue." Third, no stable, shed or other building could be erected within ten feet of the rear line of the lots until the alley was dedicated in the rear of them. Fourth, "no dairy, nor manufactory, nor trade, nor business, nor nuisance shall be conducted on or permitted to exist on said premises except on the lots fronting on the north line of Delmar avenue in said block No. 4542, which may be used for trade or business purposes, and business houses may be erected thereon." Fifth, it is provided that these conditions should continue in full force until the first day of January, 1920, "and any violation of the preceding conditions, stipulations and agreements or any part thereof by the grantee in any and each of such conveyances or by any person claiming or holding the said premises, so conveyed, by, through or under such grantee may be prevented by injunction or other proper proceedings in court by any property owner in said Hamilton Place." It is further alleged in this amended petition that these conditions, stipulations and agreements mentioned were contained in each and every conveyance thereafter made by the trustees and by those deraigning title from them and their grantees; that each and every one of the conveyances subsequently made contained these restrictions and were duly filed of record and that each and every holder and owner, including plaintiffs and defendants, of each and every lot in Hamilton Place, had, when he purchased his lot, notice, actual and constructive, of all these conditions, stipulations and agreements above set forth, and it is averred that they are binding upon each and every one of them. It is further averred that defendants have purchased and are the owners and holders and interested either as owners or otherwise in these lots 1 and 2, of city block 4542, of Hamilton Place, and the ownership of plaintiffs of various lots in that place is averred, it being further averred that plaintiffs and other owners have erected handsome and valuable houses in which they reside on their respective lots, have purchased and improved their lots in reliance upon and have complied in all respects with the provisions and conditions of the deeds before mentioned.

It is charged that defendants Robert Bidwell and Honora McGowan and defendant William J. Langan had purchased and held title to these lots subject to these conditions and that defendant Bradley, is trustee named in a deed of trust upon the property, which had been given since the institution of this suit to secure payment of notes held by parties unknown to plaintiffs,...

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