Kraemer v. Shelley

• Citation: 198 S.W.2d 679,355 Mo. 814
• Decision Date: 09 December 1946
• Docket Number: 39997
• Parties: Louis Kraemer and Fern E. Kraemer, His Wife, Appellants, v. J. D. Shelley and Ethel Lee Shelley, His Wife, and Josephine Fitzgerald
• Court: Missouri Supreme Court

198 S.W.2d 679

355 Mo. 814

Louis Kraemer and Fern E. Kraemer, His Wife, Appellants, v. J. D. Shelley and Ethel Lee Shelley, His Wife, and Josephine Fitzgerald

No. 39997

Supreme Court of Missouri

December 9, 1946

Rehearing Denied January 13, 1947.

Appeal from Circuit Court of City of St. Louis; Hon. William K Koerner, Judge.

Reversed and remanded (with directions).

G L. Seegers of York & Seegers for appellants.

(1) A person who takes with notice, actual or constructive, can and will be restrained. 4 Pomeroy on Eq. Juris., sec. 1295; (2) And a purchaser is chargeable with notice if proper search of the public records would reveal the restriction. Appel v Buckbinder, 82 Misc. 312, 143 N.Y.S. 710; Whistler v. Cole, 81 Misc. 519, 143 N.Y.S. 478; Spencer v. Stephens, 18 Misc. 112, 41 N.Y.S. 39; Hartman v. Wells, 257 Ill. 167, 100 N.E. 500. (3) The court erred in following Thornhill v. Herdt, 130 S.W.2d 175, and erred in applying the principle announced therein to the case at bar. (4) A "covenant" is an agreement by deed to do or not to do a certain thing. B. and B. Pl. Corp. v. Hockinjos, 132 N.J.L. 229, 39 A.2d 80. (5) A covenant in a deed or an agreement creating restrictions against the use or occupancy of property by members of a certain race are valid and enforceable being such agreements as the parties entering into them have a right to make. Koehler v. Rowland, 275 Mo. 573, 205 S.W. 217, 9 A.L.R. 107; Porter v. Johnson, 115 S.W.2d 529; Kenwood Land Co. v. Hancock Inv. Co., 169 Mo.App. l.c. 722, 155 S.W. 863. (6) Restrictions against only use and occupancy by negroes are consistently upheld. 37 Colo. Law Rev. 1230. (7) Where negroes bought property which was restricted against occupancy by negroes, they could not occupy the premises. Littlejohn v. Henderson, 111 Cal.App. 115. (8) Such agreements are to be construed in a way to ascertain the intention of the parties and to give effect to such intention which is to be gathered from the terms of the instrument itself when considered in the light of all the facts and circumstances attending its execution, and with a view to supporting rather than defeating them. Pierce v. St. L. Union Trust Co., 311 Mo. 262 278 S.W. 398; Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604, 95 A.L.R. 452; Kitchings v. Brown, 180 N.Y.l.c. 427, 73 N.E. 245, 70 L.R.A. 742; Sanders v. Dixon, 114 Mo.App. 229, 89 S.W. 577, 16 C.J. 1219, sec. 15. (9) Restrictive agreements result in an easement in every signer to the property of every other signer. It is a property right which the courts must enforce unless affirmative defenses of laches, waiver or estoppel, or radically changed conditions are proved. Pierce v. St. Louis Union Trust Co., 311 Mo. 262 278 S.W. 398; Landell v. Hamilton, 175 Pa. l.c. 336, 34 A. 666, 34 L.R.A. 227; Porter v. Johnson, 115 S.W.2d 529; Silberman v. Uhrlaub, 116 A.D. 869, 102 N.Y.S. 299. (10) A suit such as the one at bar is based upon property rights and upon a solemn contract, and the discretion of the court hearing such a case is much narrower than where the suit is founded upon rights under the general law. Porter v. Johnson, 115 S.W.2d 529; Rombauer v. Compton Hts. Ch., 40 S.W.2d 545. (11) To be enforceable, such an agreement need not be "universal" in the sense that every lot owner in the district must be a signer, and this is particularly true if some of the property in the district is already owned by members of a race sought to be restricted; or when a small minority do not sign; or when the agreement is limited by its terms to those signing the instrument, or when, in the light of all the circumstances, the intent of the parties to restrict their own property is clear. Rombauer v. Compton Hts. Ch., 40 S.W.2d 545; Porter v. Johnson, 115 S.W.2d 529; Porter v. Pryor, 164 S.W.2d 353; Pickel v. McCawley, 44 S.W.2d 857; Stone v. Jones, 152 P.2d 19. (12) Assent, as respects contracts, is a matter of overt acts, not of inward unanimity in motives, designs or interpretations of words. Shapiro v. Queens Co. Jockey Cl., 53 N.Y.S. (2d) 135, 184 Misc. 295; Pierce v. St. L. Union Trust Co., supra. (13) The decision in Thornhill v. Herdt should not control restriction agreement contracts. The decision is not supported by the law. Scull v. Eilenberg, 94 N.J.Eq. 759, 121 A. 788; Oberwise v. Poulos, 124 Cal.App. 247, 12 P.2d 156; Foster v. Stewart, 134 Cal.App. 482, 24 P.2d 497; Griffin Gro. Co. v. Kingfisher Mill & Elev. Co., 168 Okla. 157, 32 P.2d 62; Obermark v. Clark, 216 Ala. 564, 114 So. 135; 12 Am Jur., sec. 23. (14) The law does not demand that all the property owners sign the agreement. Erickson v. Tapert, 172 Mich. 457, 138 N.W. 330; Trustees of Columbia College v. Lynch, 70 N.Y. 440, 26 Am. Rep. 615; Farmers Exch. Bk. v. Sollers, 353 Ill. 224, 187 N.E. 290, 89 A.L.R. 398; Godfrey v. Hampton, 148 Mo.App. 157, 127 S.W. 626; Meade v. Denistone, 196 A. 330, 114 A.L.R. 1227; Fairchild v. Raines, 24 Cal.2d 818, 151 P.2d 260; Stone v. Jones, 152 P.2d 19; Putnam v. Ernst, 232 Mich. 682, 206 N.W. 527; Schulte v. Starks, 238 Mich. 102, 213 N.W. 102; Allen v. City of Detroit, 167 Mich. 464, 133 N.W. 317, 36 L.R.A. (N.S.) 890.

Geo. L. Vaughn for respondents.

(1) The recording of an instrument affecting real property wherein the lots or parcels of land are not described by giving the lot numbers, or by location, monuments, courses and distance so as to enable strangers to the instrument to tell what property is intended to be restricted and who is the record owner thereof, and which does not refer to any other recorded document where such information may be obtained by the reading of such other instrument, is not sufficient to impart notice either of the existence of such an instrument or of what it contains to a subsequent purchaser. Such an instrument is void for lack of proper description of the property sought to be restricted thereby. Ozark, etc., Co. v. Frank, 156 Mo. 673, 57 S.W. 540; Gatewood v. House, 65 Mo. 663. (2) The court properly applied the rulings in the case of Thornhill v. Herdt, 130 S.W.2d 175 to the facts of this case. The agreement under consideration purported to create a neighborhood scheme whose purpose was to prevent Negroes and Mongolians from owning or occupying real property in the two city blocks in question and fronting on Labadie Avenue, thereby assuming to confer a benefit on each piece of property in the area fronting on said street in consideration of the restriction on the alienation of the same. Scull v. Eilenberg, 94 N.J.Eq. 759, 121 A. 788. (3) The property whose owners did not sign said agreement was not bound by said restriction, and was open to purchase and occupancy by Negroes. Pickel v. McCawley, 44 S.W.2d 861. (4) The title to real property was involved. Toothaker v. Pleasant, 288 S.W. 38, 40, and 41. See also ruling of this court on respondent's motion to transfer cause from St. Louis Court of Appeals. (5) Where the restriction on real property can no longer serve the original purpose for which it was created, a court of equity cannot properly enforce the same. Koehler v. Rowland, 205 S.W. 217; Pickel v. McCawley, supra. (6) The court found, and the undisputable evidence showed, that over a long period of years Negroes moved in and out of the area in question in this case, with some of the property in question being occupied sometime by a white family and then by Negroes and again by white people, without any effort on the part of plaintiffs or others having the right of action to prevent the ownership or occupancy of property in the area restricted. This failure on the part of plaintiffs and others who were parties or privies to the agreement in question to take steps to prevent its breach over a long period of years constituted a waiver of the restrictions and created an estoppel against appellants. (7) The restrictive agreement pleaded by appellants as the basis of their right to injunctive relief is forbidden by and contrary to the provisions of Section 42 of Title 8 of the United States Code, in that said restriction attempts to deny to citizens of the United States, who are citizens and residents of the State of Missouri, but not white, the same right as white citizens of Missouri enjoy to inherit, purchase, lease, sell, hold, use, and convey real property for residence purposes, and is therefore void. Sec. 42, of Title 8, United States Code; 17 C.J.S. 191, p. 545; sec. 201, p. 555; Hagerty v. St. Louis Mfg. & Storage Co., 142 Mo. 238, 44 S.W. 1144; Spragus v. Rooney, 104 Mo. l.c. 358, 16 S.W. 505; Lehigh Valley R. Co. v. United Lead Co., 133 A. 290, 102 N.J. Law, 545, and cases cited on invalidity of contracts violative of valid laws of United States. (8) The restrictions against Negroes contained in the agreement relied upon by appellants as the basis of their right to maintain this action is forbidden by, and is contrary to, the provisions of Section 41 of Title 8 of the United States Code, in that said restriction attempts to deny to respondents and other persons who are subject to the jurisdiction of the United States, and residing in the State of Missouri and are citizens thereof, but who are not white, the same right to make and enforce contracts and to enjoy the full and equal benefit of all laws and proceedings for the protection of their property as is enjoyed by white citizens of this State: and because it attempts to subject respondents to other and different exactions than those imposed on white citizens of Missouri, solely because of the difference of their race and color from that of such white citizens. Sec. 41, Title 8, U.S.C.; Lehigh Valley R. Co. v. United Lead Co., supra. (9) Because said agreement is the result of a conspiracy on the part of appellants, their cosigners and their privies and assigns, and members of the Real...