Koehler v. Rowland

Citation205 S.W. 217,275 Mo. 573
PartiesELIZABETH KOEHLER and AUGUST KOEHLER, Her Husband, Appellants, v. LEONARD N. ROWLAND et al
Decision Date30 July 1918
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court. -- Hon. Allen C. Southern, Judge.

Reversed and remanded (with directions).

Gage Ladd & Small for appellants.

(1) There is nothing against public policy in inserting a condition in a deed that the property shall not be sold or leased to colored people. Such restrictions, tend to promote peace and to prevent violence and bloodshed, and should be encouraged. The courts have sustained laws providing for separate schools for negroes and separate coaches on railroad trains, and even in street cars, and laws prohibiting negroes from attending theatres attended by white people and segregating negroes and whites in cities. The covenants contained in this deed are perfectly reasonable, lawful and binding. Plessy v. Ferguson, 163 U.S. 537; Buchanan v. Worley, 165 Ky. 559, 177 S.W. 472; State v. Gurry, 121 Md. 534; Keltner v Harris, 196 S.W. 1. (2) That conditions in the neighborhood may have changed is wholly immaterial and in no way impairs the validity or force of the conditions or restrictions in a deed. Thompson v. Langan, 172 Mo.App. 83; Spahr v. Cape, 143 Mo.App. 114; Noel v. Hill, 158 Mo.App. 426. (3) The provisions in plaintiffs' deed to Waters, not only prohibited the use by or sale of the property to negroes, but expressly provided that if such sale or use was made "the property should revert" to Mrs. Koehler, "without any process of law or equity." Upon violation of the conditions, which are conditions subsequent, the title therefore, vested ipso facto in Mrs. Koehler, and the house or improvements, being fixtures and a part of the land, reverted with the land to the plaintiffs. Ellis v. Kyger, 90 Mo. 600; O'Brien v. Wagner, 94 Mo. 93; Brooks v Gaffin, 192 Mo. 253; St. Louis Ty. Co. v. Curtis, 167 S.W. 489, (expressly in point as to improvements). (4) If re-entry was necessary under the law in this State the bringing of an action in ejectment is equivalent to and obviates the necessity of re-entry for condition broken. Ellis v. Kyger, 90 Mo. 606; O'Brien v. Wagner, 94 Mo. 96; Brooks v. Gaffin, 192 Mo. 253. The statute relating to quieting title, Section 2535, R. S. 1909, expressly permits legal and equitable relief in the same proceeding, and in this case we have not only asked for a decree quieting title, but for possession; which makes the suit, in effect, the same as a suit in ejectment and does away with the necessity of re-entry for condition broken, the same as a suit in ejectment. (5) The rights of the plaintiffs being legal rights, and not equitable, this is a suit at law so far as the plaintiffs are concerned. Lee v. Conran, 213 Mo. 404; O'Brien v. Wagner, 94 Mo. 94; Ellis v. Kyger, 90 Mo. 600; Clarke v. Brookfield, 81 Mo. 503. This is not a suit to enforce a forfeiture. There is no affirmative action necessary on the part of the court to declare a forfeiture in order to establish plaintiffs' rights, because their deed expressly states that the title shall revert to them "without any process of law or equity." Authorities under point 4. No law prevents parties, competent to contract, from making such contract; nor does it contravene public policy. Brooks v. Gaffin, 192 Mo. 253; Brooks v. Gaffin, 196 Mo. 351; Smith v. Eagle Coal and Merchantile Co., 170 Mo.App. 27.

Maurice H. Winger, S. J. McCulloch and New Mieler, Camack & Winger for respondents.

(1) The evidence fails to show that the condition in the deed has been broken. 1 Jones on Real Property, sec. 679; Sheppard's Touchstone, p. 133; 2 Washb. on Real Property (5 Ed.), 7; 2 Dev. on Deeds (3 Ed.) sec. 970; 8 Ruling Case Law, p. 1110, sec. 171; Studdard v. Wells, 120 Mo. 25; Gratz v. Railroad Co., 165 Mo. 211; Catron v. Collegiate Institute, 264 Mo. 713; St. Peter's Church v. Bragaw, 144 N. C., 126; Moore v. Trust Co., 173 Mo. 218; 2 Underhill on Landlord & Tenant, sec. 789, p. 1343. (2) The condition in the deed executed by the plaintiffs, providing that, in the event of a sale, lease or rental to negroes within twenty-five years, the property should revert to the grantor, is void: (a) It is an unlawful restraint on the power of alienation incident to a fee-simple title. McDowell v. Brown, 21 Mo. 57; Kessner v. Phillips, 189 Mo. 515; Weatherford v. King, 119 Mo. 57; Jones v. Port Huron Co., 171 Ill. 502; Bennett v. Chapin, 77 Mich. 526; Wood v. Kice, 103 Mo. 335. (b) The condition is void because it violates the rule against perpetuities. 30 Cyc. 1467; Lockridge v. Mace, 109 Mo. 162; Gray, Rule against Perpetuities, sec. 214, p. 151; 2 Sharswood & B. Leading Cases on Real Property, 487; Gates v. Seibert, 157 Mo. 254; Shepard v. Fisher, 206 Mo. 239. (c) The condition is void as against public policy. Kitchen v. Greenbaum, 61 Mo. 115; Montgomery v. Montgomery, 142 Mo.App. 486; United States v. Norris, 125 F. 322; Gandolfo v. Hartman, 49 F. 181. (3) Even if the court should rule that the condition in the deed is not void as being a restraint upon the power of alienation and as being in violation of the rule against perpetuities, or as against public policy, it is not within the province of a court of equity to enforce a forfeiture for condition broken, but it is within the power of a court of equity to relieve against such forfeitures where the forfeiture would be unjust and inequitable. (a) A court of equity has no jurisdiction to enforce a forfeiture. Moberly v. Trenton, 181 Mo. 637; Spies v. Avondale Co., 60 W.Va. 389; John v. McNeal, 167 Mich. 148; Douglas v. Ins. Co., 121 Ill. 101. (b) A court of equity has power to relieve against a forfeiture. Moberly v. Trenton, 181 Mo. 646; Towne v. Bowers, 81 Mo. 491; Messersmith v. Messersmith, 22 Mo. 369; Abraham v. Stewart, 83 Mich. 10; Noyes v. Anderson, 124 N.Y. 175; Watson v. Grass, 112 Mo.App. 621. (4) In view of the changed conditions of the neighborhood in which the property in question is situated, the very purpose of the condition fails of accomplishment and to enforce such a condition would be most inequitable, unjust and oppressive; and in view of the facts and conditions in general it would be inequitable and oppressive to enforce a forfeiture. Abraham v. Stewart, 83 Mich. 7, 10; Messersmith v. Messersmith, 22 Mo. 372; Jackson v. Stevenson, 156 Mass. 496; Scharer v. Pantler, 127 Mo.App. 433; Evertsen v. Geitenberg, 186 Ill. 344; Jackson v. Stevenson, 156 Mass. 496, 28 L. R. A. (N. S.) 715; Trustees v. Thatcher, 87 N.Y. 311. (5) The court erred in any event in failing to allow any compensation for improvements made on the premises by the defendants, and it was proper to sustain the motion for new trial on that ground. Ritchie v. Railway Co., 55 Kan. 58; R. S. 1909, sec. 2401; Railroad Co. v. Shortridge, 86 Mo. 662; Huff v. Price, 50 Mo. 228; Shroyer v. Nickell, 55 Mo. 264.

WHITE, C. Roy, C., concurs.

OPINION

WHITE, C.

The plaintiffs brought this suit under Section 2535, Revised Statutes 1909, to determine the title to Lot 15, Block 2, Wirtman Place, an addition to Kansas City. The plaintiff Elizabeth Koehler and her brother, George Wirtman, were at one time owners of all the property in blocks 1 and 2 in Wirtman Place. In conveying this property in 1905 to Henry Waters, plaintiffs inserted the following condition in their deed:

"This transfer is made subject to the following conditions, to-wit: It is agreed between the parties hereto, their assigns and executors, and is made a part of this condition and consideration of this transfer, that above described property shall not be sold, leased or rented to any negro or negroes for twenty-five years from date hereof and in event of such transfer, lease or rental before expiration of said term of twenty-five years, said property shall revert to grantor or sellers without process of law or equity."

The defendants Louis N. Rowland and William N. Rowland acquired the property through mesne conveyances from the plaintiffs' grantee, and their deed stipulates that it is made subject to conditions and restriction contained in the deed to Waters. Deeds were introduced showing plaintiffs and George Wirtman conveyed other property in the same block and in Block 1, with the same restrictions. John B. Groves, trustee for the Groves Brothers Real Estate & Mortgage Company, and the Mortgage Company filed a separate answer setting up a deed of trust which the said Real Estate & Mortgage Company held on the property executed by the defendants Rowland. The defendants Rowland filed a separate answer. The defendants Fisher and Thompson were negroes -- tenants of the defendants Rowland -- and occupied a part of the property in dispute; they filed no answer in the case.

The circuit court rendered a judgment for the plaintiff in which it found that the defendants Louis N. Rowland and William H. Rowland had acquired the property subject to the conditions mentioned, that the said deed of trust was subject to the same conditions, that the conditions had been breached, that the defendants Rowland had been duly notified of the conditions of the said deed and requested to remove their negro tenants from the premises and failed to do so. The court then adjudged that the plaintiffs were the owners in fee simple, clear of all claims, that the defendants had no right, interest, lien or claim in said property, and that the plaintiffs were entitled to possession, and ordered a writ of ouster directing the sheriff to deliver possession to the plaintiffs. Separate motions for new trial were filed by the several answering defendants. The court sustained these motions, giving this reason in the order sustaining each motion:

"The facts found in the court's decree being true,...

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