Pierce v. St. Louis Union Trust Co.

• Citation: 278 S.W. 398
• Decision Date: 09 October 1925
• Docket Number: No. 24643.,24643.
• Parties: PIERCE, Treasurer, et al. v. ST. LOUIS UNION TRUST CO. et al.
• Court: United States State Supreme Court of Missouri

278 S.W. 398

PIERCE, Treasurer, et al. v. ST. LOUIS UNION TRUST CO. et al.

No. 24643.

Supreme Court of Missouri, Division No. 1.

October 9, 1925.

Opinion Modified and Motion for Rehearing Denied December 22, 1925.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Suit by Thomas M. Pierce, treasurer of Vandeventer Parks, and others, against the St. Louis Union Trust Company and others. Decree and judgment nisi for plaintiffs, and defendants appeal. Affirmed.

S. T. G. Smith, of St. Louis, for appellants.

T. M. Pierce and Samuel H. Liberman, both of St. Louis, for respondents.

SEDDON, C.

Suit in equity to enjoin the alleged violation of the restrictive covenants contained in a certain deed or instrument of title affecting Vandeventer Place, a platted addition or subdivision of land in the city of St. Louis. The suit is brought by Thomas M. Pierce, individually and as treasurer of Vandeventer Parks, and some 38 owners of residential property in said addition, as plaintiffs, against St. Louis Union Trust Company and Peyton T. Carr, trustees under the will of Lamira W. Kehlor, deceased, holders of the legal title to the real property described as lots 1, 3, 5, and 7, known as No. 6 Vandeventer Place, and John J. Mahon and Julia Mahon, his wife, lessees of said property, as defendants.

Plaintiffs' petition is in the conventional form, alleging the existence of the restrictive covenants and "their applicability to defendants' property, the violation thereof by defendants, that plaintiffs are without adequate remedy at law, and praying injunctive relief.

The answer admits the deed or instrument containing the restrictive covenants alleged in the petition, but denies their applicability to a hospital or institution for incurables, and by way of affirmative defenses pleads waiver and abandonment of the restrictive covenants and change of conditions in Vandeventer Place and the immediately surrounding or contiguous neighborhood, which change of conditions, it is averred, makes the enforcement of the restrictions inequitable. The answer also admits the ownership of the lots aforesaid as being in the defendant trustees and the lease of the premises to the defendants Mahon for use as hospital for the care of incurables; alleges that the defendants Mahon have never had, and do not purpose at any time to have, in said premises any patients afflicted with any disease or ailments which are contagious; that said hospital has been and will always be conducted in a quiet, orderly manner, and that there are no outward signs of any kind by which any person would know to what uses said premises are being put, and that, to all outward appearances, said premises are being used for residential purposes; that said Mahons use part of said premises for their home, and, since August 3, 1921, have continuously resided thereon; that the property in question is no longer suitable or usable as high grade, exclusive residence property, but can only be profitably used by the owners thereof for such purposes as boarding houses, hotels, schools, hospitals, orphan asylums, apartment houses, office buildings, and other like purposes, and therefore said covenants and restrictions, if they ever had any binding force or effect, have long since ceased to be of any binding effect upon any of the property in Vandeventer Place; that, if said property can be put to the only uses to which it is now adaptable, it has a value greatly in excess of any price at which it can be disposed of for exclusive residence purposes, and the property in question will readily sell for six times its sale price for residence purposes only. The reply is a general denial.

Plaintiffs' evidence tends to show that, in 1870, William Vandeventer and the executors of the estate of Peter L. Vandeventer, deceased, were the owners in fee simple of a certain tract of land in the city of St. Louis. In order to improve and dispose of said land to the best advantage, they determined to lay out a certain cross street and dedicate the same to public use forever, and also determined to lay out two ornamental parks or places through the central part of said tract, and to dedicate such parks or places, with the footwalks surrounding the same, to the use of the persons who might purchase and improve the lots of ground situated around said parks, but not for more public use; to adopt certain regulations for the government of said parks, and to cause all the spaces on each side of said parks to be laid out into lots, numbered from 1 to 86, inclusive, which lots they purposed to dispose of for building purposes, subject to certain regulations and restrictions expressed in the deed or instrument hereinafter referred to. In order to effectuate the objects aforesaid, the then owners, as parties of the first and second parts, executed and filed in the recorder's office a plat of Vandeventer Place and a deed or instrument, dated June 18, 1870, conveying to Charles H. Peck, Napoleon Mullikin, and John S. McCune, trustees, as parties of the third part, the two parks laid out or shown upon the map or plat, the open spaces on each side of and adjoining said parks, designated on the map as North Vandeventer Place and South Vandeventer Place, and also the strips of land designated on said map as and for footpaths and sidewalks surrounding said parks and places designated on said map, including all the lands shown upon said map other than the 86 lots of ground intended for building purposes. The deed was duly recorded on July 1, 1870 in the office of the recorder of deeds of the city of St. Louis. In substance, it provides that the three trustees therein named shall hold the lands conveyed in trust, to improve the spaces conveyed; to lay out and construct parks, ornamental grounds, and walks; to plant and place therein suitable trees and shrubbery and other appropriate decorations and works of use or art as may be deemed proper; to lay out, construct, grade, and pave the open spaces contiguous to such parks; to maintain and keep such improvements in good order and repair and against every encroachment, trespass or nuisance; to pay and discharge all public or local taxes assessed against said lands; and, furthermore, "to permit, suffer, and allow the owner or owners, from time to time, of the said 86 lots, or any of them or any part of them, with their respective proper families or the tenants under them and their respective families (but not exceeding one family for or in respect to each of the said lots) to have free ingress and egress to and from such parks, or either of them; and to frequent, use and enjoy the same as a place of common resort and recreation, under and subject always to such rules and regulations as the owners of two-thirds in number of all the said lots (as numbered in said map) shall, from time to time, make, establish and prescribe." The deed also authorizes and empowers the trustees to collect and recover annual charges or assessments upon the respective 86 lots; each of said lots to be chargeable with 1/86 share of all sums of money expended from time to time in the upkeep and maintenance of said improvements. The deed contains the following expressed covenants and restrictions:

"Second. That neither the said parties of the first and second parts, nor their or any of their heirs or assigns, owning, or who may at any time own any of said eighty-six lots of ground, shall or will at any time hereafter erect any building on said lots within twenty feet of the front boundary line thereof, or will erect upon either of said lots within seventy feet of the front of the same (such front being deemed to be upon, or towards, said parks), any buildings other than first-class dwelling houses, constructed of wood, brick, stone or iron, to cost and be worth at least ten thousand dollars for the house upon each lot, or in the proportion of fifty per cent. more for any greater frontage, and shall not, nor will, erect or permit any building, whose principal front is not towards said Vandeventer Places; nor will erect or permit upon any part of any or either of the said lots, any livery stable, slaughterhouse, smithshop, forge, furnace, steam engine, brass foundry, nail or other iron factory, or any manufactory of gunpowder, glue, varnish, vitriol, ink or turpentine, or for the tanning, dressing or preparing furs, skins, hides or leather, or any brewery, distillery or public museum, or any theater or circus or place of similar amusement, or place for the exhibition of animals, or any trade or business of any kind, dangerous, noxious or offensive to the neighboring inhabitants; or any tenement house, tavern, hotel or public school, or any warehouse or place of trade or merchandise.

"Third. That the right and privilege to frequent, use and enjoy the before described parks and places shall be an easement attached to each and every of the said eighty-six lots of land, and passing as appurtenant thereto; and to be had, held and enjoyed in manner aforesaid by the owners from time to time of the said respective lots, and their respective families occupying the same, provided they shall make the annual payments before provided for, and observe such regulations as aforesaid, but not otherwise.

"Fourth. That, all and singular, the covenants, conditions and restrictions hereinbefore expressed shall attach to and run with each and every of the said lots of land, and all titles to, and estates in the same and shall be binding upon each and every owner and occupant of the same forever; and that neither the said parties of the first and second parts, or any of them, nor their heirs or assigns, shall or will convey, devise or demise any or either of the said lots or any part of the same at any time hereafter, except as being subject to the said covenants, conditions and restrictions, and the obligation to observe and perform the same; and whether or not it be so expressed in the deeds or other...