Marie C. Toothaker And Luther Perkins v. Pleasant

• Decision Date: 15 November 1926
• Docket Number: 25526
• Citation: 288 S.W. 38,315 Mo. 1239
• Parties: Marie C. Toothaker and Luther Perkins v. Jeffry Pleasant, Appellant
• Court: Missouri Supreme Court

288 S.W. 38

315 Mo. 1239

Marie C. Toothaker and Luther Perkins v. Jeffry Pleasant, Appellant

No. 25526

Supreme Court of Missouri

November 15, 1926

Appeal from Jackson Circuit Court; Hon. James H. Austin Judge.

Reversed (with directions).

Cleary & Barnett and John R. James for appellant.

(1) The language alleged to constitute a restriction in the deed from Hall to Myers is merely a personal agreement between Hall and Myers, not a covenant running with the land. Devlin on Real Estate, p. 1858; 18 C. J. p. 396, sec. 460; Berryman v Hotel Savoy Co., 160 Cal. 559; Kelly v. Hall, 96 Ohio St. 374. (2) Even though the alleged restriction be a covenant running with the land and imposing a burden upon the property described in the Hall deed, remote grantees of one portion of the lots conveyed have no right to enforce it against a remote grantee of another part of the same lots such as appellant. Korn v. Campbell, 37 L. R. A. (N S.) 1, and note; Berryman v. Hotel Savoy Co., 37 L. R. A. 5 and notes pp. 12 to 37; Doerr v. Cobbs, 146 Mo.App. 342; Coughlin v. Barker, 46 Mo.App. 54; 2 Tiffany on Real Property (2 Ed.) p. 1466; Jewell v. Lee, 14 Allen (Mass.) 145; Dana v. Wentworth, 111 Mass. 291; Kelly v. Hall, 96 Ohio St. 374; Graham v. Hite, 93 Ky. 474. (3) The character of the neighborhood in which the property in question is located and the colored occupancy of the surrounding property have made the so-called restriction impracticable, unworkable, unenforceable and invalid. Koehler v. Roland, 275 Mo. 575; Moore v. Curry, 176 Mich. 456; Kneip v. Schroeder, 255 Ill. 621; Devlin on Real Estate, sec. 991, C; Thompson v. Langen, 172 Mo.App. 83. (4) Courts favor the unrestricted use of real property and when there is any doubt in the language it must be resolved in favor of the free use of the property. Sanders v. Dixon, 114 Mo.App. 229; Owens v. Trail, 302 Mo. 292; Kitchen v. Howley, 150 Mo.App. 497; Kenwood Land Co. v. Hancock Inv. Co., 169 Mo.App. 715; Scharer v. Pantler, 127 Mo.App. 433; Loomis v. Collins, 272 Ill. 22.

G. C. Weatherby and Roy N. Devault for respondent.

(1) The covenant was not merely a personal agreement between Hall and Myers, nor for this reason was the covenant destroyed by the act of Myers in conveying to Bessie Kinley without expressly renewing it. A solemn agreement was made whereby grantee agreed, not only on behalf of himself, but on behalf of his successors, assigns and grantees, that he or they, or any of them would not sell, assign or rent any of said property to a negro within fifteen years from that date. The purpose of the parties should be kept in mind. Godfrey v. Hamption, 148 Mo.App. 157; Kenwood Land Co. v. Inv. Co., 169 Mo.App. 715; Kitchen v. Hawley, 150 Mo.App. 497. (2) There was no evidence showing that Hall retained any land in the vicinity of the property he conveyed to Myers. The covenant, therefore, was not for his benefit, or as is sometimes referred to, for the benefit of land retained by him. It must have been then for the benefit of the grantee, and, as the covenant recites, for his successors, assigns and grantees. The burden of the agreement is upon the grantee and his grantees. (3) It is contended that inasmuch as Kinley conveyed the west property without repeating the words of the restriction it was waived or relinquished. This claim must be due to a misapprehension. If the covenant was purely personal to the grantee there was nothing to waive. On the other hand, if the covenant was personal to the extent it benefited the land, as we claim, a failure to recite it in a subsequent conveyance could not operate to remove it. Mesne conveyances omitting the language of the covenant, or failing to refer to it, where that covenant is one that confers a benefit or imposes a burden upon the land, do not operate to release the land from the effects of the covenant or restriction. Johnson v. Johnson, 170 Mo. 49.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Action in equity to enjoin defendant (appellant here), who is a negro woman, from occupying certain improved real property in Kansas City, Missouri, owned by her and described as the west 42 1/2 feet of lots 3 and 4, block 2, in Dalcoulin, a platted addition in said city, and from selling, renting or leasing the same to negroes, or otherwise permitting the use or occupancy of said property by negroes, until September 28, 1930. Plaintiffs (respondents here) are white persons and are the record owners of the east 99 1/2 feet (except 5 feet taken and used for street purposes) of said lots 3 and 4, block 2, in Dalcoulin Addition, adjacent to defendant's property and lying immediately east thereof. A temporary injunction issued, and, upon final hearing on the merits, a decree was entered by which the injunction was made permanent and a monetary judgment was awarded plaintiffs against defendant in the sum of $ 776.25 for alleged loss of rentals from their property. Defendant, after the customary preliminary steps, has appealed to this court.

The salient facts, as gathered from the record before us, are these: Lots 3 and 4, block 2, in Dalcoulin Addition, as originally platted, had a length or depth of 142 feet. Subsequently, the east five feet of said lots was taken or dedicated for public use as a part of Brooklyn Avenue in said city. The lots in question are situate at the northwest corner of Brooklyn and Howard Avenues. Brooklyn Avenue is a north-and-south street, and Howard Avenue is an east-and-west street. The width, or short frontage, of said lots is on Brooklyn Avenue, while the depth, or long frontage, of the lots is on Howard Avenue. The lots in question occupy the southeast corner of a rectangular city block, bounded on the east by Brooklyn Avenue, on the south by Howard Avenue, on the west by Garfield Avenue and on the north by Twenty-fourth Street.

The entire tract, that is, all of said lots 3 and 4, was originally owned by one Walter M. Hall. On September 28, 1915, said Walter M. Hall and his wife, Anna C. Hall, conveyed the whole of said lots by warranty deed dated the same day, to one Fay Myers for a valuable consideration expressed in said deed. The deed from Hall and wife to Myers contained this covenant or recital: "As a part of the consideration, the grantee for himself and his successors and assigns and grantees agree not to sell or assign or rent any of said property to a negro for a period at least of fifteen years from this date." This action hinges upon the quoted recital or covenant of said deed, which was duly recorded in the Recorder of Deed's office at Kansas City, Jackson County, Missouri, on October 26, 1915.

On September 27, 1915, Fay Myers executed and delivered a deed of trust, whereby the east 94 1/2 feet of said lots 3 and 4 was conveyed to Joseph F. Keirnan, trustee for the National Association of Letter Carriers of United States of America, a corporation, to secure to said corporation the payment of certain promissory notes therein described. This deed of trust makes no reference to the restrictive covenant or recital contained in the warranty deed from Hall and wife to Myers. Said deed of trust was also duly recorded on October 26, 1915.

On September 28, 1915, Fay Myers conveyed the whole of said two lots, as one tract or parcel of land, to one Bessie L. Kinley by warranty deed, which deed recites that "this conveyance is made subject to all incumbrances of record affecting said property," but otherwise the deed makes no reference to said restrictive covenant contained in the Hall deed. This deed was also duly recorded on October 26, 1915.

At the time Walter M. Hall owned the entire property, that is, all of said lots 3 and 4, and before said property was conveyed to Myers and by Myers to Bessie L. Kinley, it was improved with a large frame house, which house faced or fronted east upon Brooklyn Avenue. After Bessie L. Kinley acquired title to the entire property, consisting of the whole of said two platted lots, she moved the frame house onto the west 42 1/2 feet of said two lots, so that the house then faced or fronted south on Howard Avenue. Upon the east 99 1/2 feet of said two lots, Bessie L. Kinley erected a three-story brick apartment building, containing twelve separate three-room apartments, three garages and a basement, fronting east on Brooklyn Avenue.

Thereafter the deed of trust executed by Fay Myers on September 27, 1915, was foreclosed and the property conveyed thereby, viz., the east 94 1/2 feet of said lots 3 and 4, was sold at a trustee's sale held on October 5, 1917, the purchaser at such foreclosure sale being the beneficiary named in said deed of trust, said National Association of Letter Carriers of United States of America, subject to the right of said Bessie L. Kinley to redeem said property within the one year period prescribed by statute. [R. S. 1919, sec. 2222.] Bessie L. Kinley never exercised her right of redemption within the statutory period aforesaid, and Joseph F. Keirnan, as trustee, on November 29, 1918, executed and delivered a trustee's deed to the said purchaser at the foreclosure sale, which trustee's deed was duly recorded on December 5, 1918. The trustee's deed makes no reference to the restrictive covenant contained in the deed from Hall and wife to Myers. Subsequently, in order to correct the description of the property intended to be conveyed by the said deed of trust and trustee's deed, Bessie L. Kinley and her husband, on September 20, 1920, executed and delivered a quit-claim deed to National Association of Letter Carriers of United States of America, the purchaser at the trustee's sale, conveying to said corporation all of the east 99 1/2 feet of lots 3 and 4, block 2, in Dalcoulin Addition, except the east five feet of said lots in Brooklyn...