Miller v. Sabastian Klein
| Citation | 160 S.W. 562,177 Mo.App. 557 |
| Parties | LOUISA K. MILLER, Respondent, v. SABASTIAN KLEIN et al., Appellants |
| Decision Date | 04 November 1913 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.
AFFIRMED.
Judgment affirmed.
Seddon & Holland for appellants.
(1) The plaintiff states no cause of action in her petition. (a) She relies solely on the restrictions contained in the deed from West End Realty Company to November Investment Company of July 25, 1907. She does not state that this deed or any other deed containing restrictions was recorded or that the defendant, at the time he purchased his property had any kind of notice of that deed, or any other deed, or of the existence of any restrictions in favor of any one, on the property. (b) The plaintiff does not state that the parties to the deed of July 25, 1907, intended the restrictions on it for the benefit of the plaintiff's lot nor does she state any plan or other fact from which such intention might be inferred. (c) She does not state that, if there was such intention, the defendant, when he purchased his property, had any notice of such intention or of the fact, if any, that any restrictions existed on the property in favor of the plaintiff's lot. Nor does she state that the defendant at the time he purchased his property, had any notice of any plan or other fact from which such intention or such right of the plaintiff might be inferred. De Gray v. Club, 50 N.J.Eq. 529; Coughlin v. Barker, 46 Mo.App. 54; Fete v. Foerstel, 159 Mo.App. 75, 139; Meriwether v. Joy, 85 Mo.App. 634; Doerr v Cobbs, 146 Mo.App. 342; Curtis v. Rubin, 244 Ill. 88; Dana v. Wentworth, 111 Mass. 291; Jewell v. Hill, 14 Ala. 145; Hays v Church, 196 Ill. 633. (2) Admitting the sufficiency of the petition to state a cause of action and referring to the evidence, which is contained in an agreed statement of facts, we submit that the evidence does not show any restrictions existing against defendant's property in favor of the plaintiff's property. The deed of July 25, 1907, on which the plaintiff solely relies, shows on its face no intention of the parties that the restrictions contained in it should inure to her benefit, and the "agreed statement of facts" states no evidence or facts extraneous to the deed from which such an intention might have been inferred by the defendant, when he purchased his property. The deeds shown in the statement of facts which had been made prior to defendant's purchase, show no definite plan or scheme from which such intention might have been inferred by the defendant at the time he purchased his property, admitting that he had notice of such deeds, which is not shown either in the pleadings or evidence. Doerr v. Cobbs, 146 Mo.App. 341. (3) The only evidence of such plan or scheme is the statement of the answer, which may be taken as an admission that the West End Realty Company had a general plan or scheme to restrict all of the lots in "Washington Heights" against flats and apartments. The evidence does not show that the defendant when he purchased his property had knowledge, or any notice, actual or constructive, of said plan or scheme and the answer does not admit or show such notice. (4) If there is any evidence in the record of a plan or scheme of West End Realty Company, the owners of "Washington Heights" from which notice could have been inferred by the defendant (if he knew of the plan), that his property when he purchased it, was incumbered with a negative easement in favor of the plaintiff's lot, restricting it against flats and apartments, such plan was that stated in the answer, to so restrict every lot in the place in favor of every other lot. (5) Building restrictions which are created to effectuate a general plan or scheme of improvement and which are reasonable when made, become unreasonable, when the circumstances under which they were laid have become so changed without the fault of either party, as to defeat to all intents and purposes the very end and purposes for which they were laid, and which were intended to be effectuated by them. The circumstances have so changed in this case that to enforce the restrictions claimed, entirely reasonable when made, would now be grossly inequitable. Columbia v. Thatcher, 87 N.Y. 311; High on Injunctions, Sec. 1158; Sayers v. Collier, 24 Ch. Div. 180; Frink v. Hughes, 133 Mich. 63; McClure v. Leafycraft, 183 N.Y. 36; Bedford v. British Museum, 2 Milne & K. 552; Coughlin v. Barker, 46 Mo.App. 54. (6) Restrictions laid in pursuance of a general plan or scheme from which alone they are inferred, are so inferred because they are a necessary part of the plan. They are conditioned by the plan and are only intended sub modo, viz., if the plan can be made effective. If before the plan can be substantially carried out, from causes over which the defendant has no control, the plan as contemplated becomes abortive and fails to all intents and purposes, so that it cannot in substance be carried out as intended, the plan fails, and with it the restrictions fail. In truth they never take effect except conditionally. In the case at bar, the plan, if any, was defeated by the foreclosure of the deed of trust by the Missouri Lincoln Trust Company and cannot now be realized. In this case the right, if any, of the plaintiff is to preserve and protect the plan. The plan having failed she can have no right remaining to protect it and perpetuate it. Coughlin v. Barker, 46 Mo.App. 54, 77.
Bishop & Cobbs, S. C. Rogers and W. S. Connor for respondent.
(1) Defendant's objection to the petition cannot be sustained: (a) Because it is raised here for the first time and come "too late to deserve very favorable consideration." Ice & Cold Storage Co. v Kuhlman, 238 Mo. 685; Goldsmith v. St. Louis Candy Co., 85 Mo.App. 595; State ex rel. v. Delaney, 122 Mo.App. 239; Dodge v. Coal & C. Co., 115 Mo.App. 501; Ball v. Neosho, 109 Mo.App. 683; Donaldson v. County of Butler, 98 Mo. 163. (b) Because the petition states a cause of action, even without the aid of the answer, stipulation and judgment. Section 1836, R. S. 1909; Sections 2809 & 10, R. S. 1909; King v. St. Louis Union Tr. Co., 226 Mo. 351; Meriwether v. Joy, 85 Mo.App. 634. (c) Because, if there were any defects in the petition, they have been cured by the answer, the agreed statement of facts, and the judgment. Section 2119, R. S. 1909, Sub. div. 5th, 8th & 9th; 31 Cyc. 763 to 769; Wagner v. Benefit Society, 70 Mo.App. 161; Grove v. City of Kansas, 75 Mo. 672; Hurst v. City of Ash Grove, 96 Mo. 168; Young v. Shickle H. & H. I. Co., 103 Mo. 324; Ball v. Neosho, 109 Mo.App. 683; Broybill v. Norton, 175 Mo. 190; Donaldson v. County of Butler, 98 Mo. 163; Garth v. Caldwell, 72 Mo. 622; Jackson v. Powell, 110 Mo.App. 249. (d) Because the court will not reverse the case, on such an objection, where justice has been done. Sec. 1850, R. S. 1909; Sec. 1865, R. S. 1909; Sec. 2082, R. S. 1909; Malone v. Fidelity and Casualty Co., 71 Mo.App. 1; Murphy v. Ins. Co., 70 Mo.App. 78; Alter v. Frick, 62 Mo.App. 453. (2) The defendant's lots were burdened with the restrictions in favor of the plaintiff's lot and in favor of all other lots covered by deed from West End Realty to November Investment Company, and defendant knew it. (a) Because defendant purchased his lot directly from the November Investment Company and expressly "subject to the restrictions." (b) Because the restrictions in themselves show that they were intended as a burden on each lot for the benefit of each other lot covered by that deed. King v. Union Trust Co., 226 Mo. 351; Hall v. Wesster, 7 Mo.App. 56; Litchfield v. Boogher, 238 Mo. 472. (3) There is no evidence that there ever was a general scheme to restrict all of the lots in "Washington Heights." (a) Because, all of the lots were deeded, without restrictions, to a trustee as security for certain notes. (b) Because the plat of "Washington Heights" contained no mention of restrictions. (c) Because some lots were released from the deed of trust and conveyed without restrictions. (d) Because the restrictions are not the same on all the lots which were restricted. (e) Because the deed of the West End Realty Company to the November Investment Company shows no scheme whatever, except the scheme, therein contained, to restrict certain of the lots covered by that deed in a particular way, for a definite time and for the benefit of the grantees of any of said lots. (4) Circumstances have not so changed as to render the restrictions inequitable. Changed conditions, in order to justify a court in declaring covenant restrictions no longer enforcible, must be: (a) Such as could not have been anticipated or foreseen by defendant (which is not the case here). (b) Such as are within and actually destroy the scheme of improvement contemplated by the restrictions themselves. Changes in the property outside of that scheme (as here), can not be used as a defense. (c) Such as render it absolutely unconscionable to enforce the restrictions. No such changes have been shown in this case. Spahr v. Cape, 143 Mo.App. 114; Improvement Co. v. Strauch, 162 Mo.App. 76; Fete v. Foerstel, 159 Mo.App. 75. (5) Under the decisions of this court, upholding building restrictions, the judgment in this case should be affirmed. (a) The court looks with favor upon such a plan. Noel v. Hill, 158 Mo.App. 426; Kitchen v. Hawley, 150 Mo.App. 497. (b) The overwhelming weight of authority upholds plaintiff. Hall v. Wesster, 7 Mo.App. 56; Spahr v. Cape, 143 Mo.App. 114; Meriwether v. Joy, 85 Mo.App. 634; St. Louis Safe Dep. Bank v. Kennett, 101 Mo.App. 370; Sanders v. Dixon, 114 Mo.App. 229; Godfrey v. Hampton, 148 Mo.App. 157; Fete v. Foerstel, 159 Mo.App. 75; Improvement Co. v. Strauch, 162 Mo.App. 76; Litchfield...
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