225 S.W.2d 127 (Mo. 1949), 41134, Weiss v. Leaon

Docket Nº:41134
Citation:225 S.W.2d 127, 359 Mo. 1054
Opinion Judge:PER CURIAM
Party Name:Mrs. E. Orah Weiss, Charles L. Arbogast and Nadine Arbogast, Albert J. Davis and Mary Davis, James M. Cottingham and Nelle Cottingham, Mrs. J. M. Martin, F. G. Chapman and Marie Alice Chapman, Hawley R. Brown and Edna M. Brown, Ray Kenyon and Olea T. Kenyon, Appellants, v. James A. Leaon and Erma Leaon, et al., Respondents
Attorney:Roy K. Dietrich, Edwin Earnshaw and Dietrich, Tyler & Davis for appellants. Lee E. Cisel, Roscoe C. Van Valkenburgh, Carl R. Johnson, Harry A. Hall, Hammond C. Woods, and Cliff Bailey for respondents; Cisel, Benton & McLaughlin and Miller, Sheffrey, Van Valkenburgh & Ryder of counsel.
Case Date:December 12, 1949
Court:Supreme Court of Missouri

Page 127

225 S.W.2d 127 (Mo. 1949)

359 Mo. 1054

Mrs. E. Orah Weiss, Charles L. Arbogast and Nadine Arbogast, Albert J. Davis and Mary Davis, James M. Cottingham and Nelle Cottingham, Mrs. J. M. Martin, F. G. Chapman and Marie Alice Chapman, Hawley R. Brown and Edna M. Brown, Ray Kenyon and Olea T. Kenyon, Appellants,

v.

James A. Leaon and Erma Leaon, et al., Respondents

No. 41134

Supreme Court of Missouri

December 12, 1949

Motion for Rehearing or to Transfer to Banc Overruled December 30, 1949.

Appeal from Jackson Circuit Court; Hon. Paul A. Buzard and Hon. James W. Broaddus, Judges.

Reversed in part, affirmed in part and remanded (with directions).

SYLLABUS

Plaintiffs' action was properly dismissed insofar as it sought to enforce covenants against negroes, but a count seeking damages against the grantors of the deeds in violation of the restriction should be reinstated.

[359 Mo. 1055]Roy K. Dietrich, Edwin Earnshaw and Dietrich, Tyler & Davis for appellants.

(1) The appellants have a valuable property right and should have damages at law for its destruction or impairment. The award of damages against respondents does not prevent them from acquiring, enjoying, or owning property, but a failure to allow damages in the alternative deprives appellants of their rights without due process of law. In the Matter of Sparrow, 338 Mo. 203, 90 S.W.2d 401; Shelley v. Kraemer, 334 U.S. 1, 92 L.Ed. 1161; Eisenbeis v. Shillington, 349 Mo. 108, 159 S.W.2d 641; Jablonowski v. Cap Co., 312 Mo. 173, 279 S.W. 89; Constitution of Missouri, 1945, Art. I, Secs. 2, 10, 14; U.S. Constitution, 14th Amendment; 58 C.J. 846; 16 C.J.S. 1234; 58 C.J. 1056-1058; Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437, 47 L.Ed. 249; Swanson v. Bates, 170 F.2d 648. (2) The appellants are entitled to have damages, in the alternative for the tort of respondents in wrongfully and maliciously destroying or impairing a valuable property right of the appellants, namely covenant running with the land in the nature of an easement. Helm v. Inter-Insurance Exchange, 354 Mo. 417, 192 S.W.2d 417; Braun v. Riel, 40 S.W.2d 621; Ellyson v. Mo. Power & Light Co., 59 S.W.2d 714. (3) Specific enforcement of the restriction agreement in equity, as appellants prayed alternatively, should be permitted. The respondents have waived their constitutional objections to enforcement, by their agreement and conduct and are estopped to assert them now. The Missouri courts alone can determine questions of waiver and estoppel, and that determination is conclusive. Shelley v. Kraemer, 334 U.S. 1, 92 L.Ed. 1161; Shepard v. Barron, 194 U.S. 553, 48 L.Ed. 1115; Ex parte Steele, 18 S.E.2d 132, cert. den. 316 U.S. 686, 86 L.Ed. 1758; Pierce v. Somerset Ry., 171 U.S. 641, 43 L.Ed. 316; Employers Indemnity Corp. v. Garrett, 327 Mo. 874, 38 S.W.2d 1049; Ruskamp v. Fechtling, 101 S.W.2d 524; Scott v. Scott, 324 Mo. 1055, 26 S.W.2d 598; Donaldson v. Donaldson, 278 S.W. 686; 12 C.J. 770; Erie Ry. Co. v. Tompkins, 304 U.S. 64, 82 L.Ed. 1188; Utley v. City of St. Petersburg, 292 U.S. 106, 78 L.Ed. 1155; Enterprise Irrigation Dist. v. Farmers Mut. Canal Co., 243 U.S. 157, 61 L.Ed. 644; State v. Bennett, 315 Mo. 1267; Barker v. St. Louis Co., 340 Mo. 986, 104 S.W.2d 371.

Lee E. Cisel, Roscoe C. Van Valkenburgh, Carl R. Johnson, Harry A. Hall, Hammond C. Woods, and Cliff Bailey for respondents; Cisel, Benton & McLaughlin and Miller, Sheffrey, Van Valkenburgh & Ryder of counsel.

(1) The negro restrictive agreements are wholly unenforceable as to all the respondents including both the white sellers and the negro buyers. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R. (2d) 441; Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187; Woytus v. Winkler, 357 Mo. 1082, 212 S.W.2d 411; Kraemer v. Shelley, 214 S.W.2d 525; Saunders v. Phillips, 62 A.2d 602; Phillips v. Saunders, 69 S.Ct. 938, 93 L.Ed. 861; Tovey v. Levy, 401 Ill. 393, 82 N.E.2d 441; Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149. (2) Since respondents do not voluntarily adhere to the terms of the negro restrictive agreements and because said agreements are wholly unenforceable, the appellants have no property rights, created by said agreements, which are cognizable in this court and which could be the subject of any constitutional protection. Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, 3 A.L.R. (2d) 441; Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 836, 92 L.Ed. 1187; Edwards v. Kearzey, 96 U.S. 595, 24 L.Ed. 793; Franklin Sugar Refining Co. v. Martin-Nelly Grocery Co., 94 W.Va. 504, 119 S.E. 473; Wald's Pollock on Contracts (3rd Ed.), Chap. XIII, p. 772; 1 Williston on Contracts (Rev. Ed.), p. 23; Sec. 14, Restatement of the Law of Contracts. (3) The granting of any relief, as prayed in plaintiffs' petitions, against the white respondents is unconstitutional in that it would arbitrarily deprive said white respondents of their right to contract, in violation of the due process clauses in both the United States Constitution and the Missouri Constitution. Gideon-Anderson Lumber Co. v. Hayes, 348 Mo. 1085, 156 S.W.2d 898; Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149; Constitution of Missouri, 1945, Art. I, Sec. 10; U.S. Constitution, 14th Amendment. (4) The respondents do not have the power, expressly or impliedly, to waive their constitutional rights, herein asserted, nor to estop themselves to make their constitutional objections herein, since the trial court was without jurisdiction to render any judgment enforcing negro restrictive agreements in violation of the equal protection clause, and want of jurisdiction of the subject matter cannot be waived. State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52; 15 C.J. 802; Sec. 66, Laws 1943, p. 375. (5) The respondents did not waive their constitutional rights, herein asserted, nor estop themselves to make their constitutional objections herein by purchasing real property with either actual or constructive notice of negro restrictive agreements. Woytus v. Winkler, 357 Mo. 1082, 212 S.W.2d 411; Saunders v. Phillips, 62 A.2d 602; Phillips v. Saunders, 69 S.Ct. 938, 93 L.Ed. 861; Tovey v. Levy, 401 Ill. 393, 82 N.E.2d 441. (6) The respondents in Flinn v. Kirkpatrick, No. 41497, and in Runner v. Hilton, No. 41496, did not waive their constitutional rights, herein asserted, nor estop themselves to assert their constitutional objections herein by accepting deeds containing such words as, "subject to restrictions as set forth in instrument filed for record July 1, 1931, and recorded in Book B 3011, p. 541" and such as, "subject to all restrictions and easements now of record," because the words "subject to" are not words of contractual effect. Hall v. Morgan, 79 Mo. 47; Carter v. Cemansky, 126 Iowa 506, 102 N.W. 438; Von Meding v. Strale, 319 Mich. 598, 30 N.W.2d 363; Purdy v. Coar, 109 N.Y. 448, 17 N.E. 352; S.T. McKnight Co. v. Central Hanover Bank & Trust Co., 120 F.2d 310; Shell Oil Co. v. Manley Oil Corp., 124 F.2d 714.

OPINION

PER CURIAM

Page 128

[359 Mo. 1057] This is an action to enforce a racial restriction agreement or, in the alternative, for damages for breach of such agreement. Under the decision of the Supreme Court of the United States in Shelley v. Kraemer, 334 U.S. 1, 92 L.Ed. 845, 68 S.Ct. 836, 3 ALR (2d) 441, holding that judicial enforcement of such an agreement violates the Fourteenth Amendment, the trial court dismissed the entire action. Racial restriction agreements may no longer be judicially enforced under Shelley v. Kraemer, and the judgment of the trial court dismissing that part of the action was proper.

The only issue before this court now for determination is whether the decision in Shelley v. Kraemer also forecloses a suit for the breach of a racial restriction agreement between parties under such an agreement. We find that Shelley v. Kraemer has not ruled on this issue.

The facts of the case are these. Plaintiffs are white persons who own lots in Santa Fe Place in Kansas City. Defendants Leaon, also white persons, are the owners of a lot at 2630 East 29th Street in Santa Fe Place. Defendants Leaon sold or were about to sell their lot to defendants Street, persons of the negro race. The lots in Santa Fe Place are subject to a private restriction agreement to run thirty years from February 5, 1931 which provides that none of the lots may be devised, sold, leased or occupied by negroes. Plaintiffs and defendants Leaon are parties under the agreement either as original makers or as their successors in interest.

In their original petition plaintiffs sought...

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