Andrews v. Metropolitan Bldg. Co.

• Decision Date: 01 July 1942
• Docket Number: 37833
• Parties: Jesse Andrews, Joseph M. Bernardin, Joseph H. S. Heim, J. H. Batchelor, Mrs. Guy M. Cowgill, Mrs. Edward L. Foutch, Alex C. Green, Mrs. Edith E. Jenkins, Lex McDaniel, William B. Schneider, Mrs. Anna Tschudy, Frank E. Tyler, Mrs. Lucy Thompson Willock, Ruby D. Garrett, Wendell H. Cloud v. Metropolitan Building Company and Marie Harden, Appellants
• Court: Missouri Supreme Court

163 S.W.2d 1024

349 Mo. 927

Jesse Andrews, Joseph M. Bernardin, Joseph H. S. Heim, J. H. Batchelor, Mrs. Guy M. Cowgill, Mrs. Edward L. Foutch, Alex C. Green, Mrs. Edith E. Jenkins, Lex McDaniel, William B. Schneider, Mrs. Anna Tschudy, Frank E. Tyler, Mrs. Lucy Thompson Willock, Ruby D. Garrett, Wendell H. Cloud v. Metropolitan Building Company and Marie Harden, Appellants

No. 37833

Supreme Court of Missouri

July 1, 1942

Rehearing Denied July 28, 1942.

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Affirmed.

Kenneth W. Tapp and Alfred M. Seddon for appellants.

(1) The applicable rules of construction. (a) Restrictive covenants limiting use of property are not favored in law and will not be extended by implication to include anything not clearly expressed in them. 18 C. J., p. 388; Mathews Real Estate Co. v. National Ptg. Co., 330 Mo. 190, 48 S.W.2d 911; Gardiner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604; Bolin v. Tyrol Inv. Co., 273 Mo. 257, 200 S.W. 1059; Charlot v. Regents Merc. Corp., 251 S.W. 421; Missouri Province Institute v. Schlecht, 322 Mo 621, 15 S.W.2d 770; Williams v. Carr, 213 Mo.App. 223, 248 S.W. 625; Pierce v. Kelner, 156 A. 61. (b) If the covenant is not ambiguous, the ordinary meaning of the language used governs its construction. 18 C. J., p. 389; Porter v. Johnson, 232 Mo.App. 1150, 115 S.W.2d 529; Anchor Serum Co. v. Rea, 326 Mo. 811, 32 S.W.2d 587; Laughlin v. Terry, 110 S.W.2d 838. (c) If the covenant is ambiguous, it will be resolved against the restriction. Williams v. Carr, 213 Mo.App. 223, 248 S.W. 625; Breadon v. Paugh, 330 Mo. 127, 48 S.W.2d 853; Palfrey v. Killian, 224 Mo.App. 325, 27 S.W.2d 462; Conrad v. Boogher, 201 Mo.App. 644, 214 S.W. 211. (d) When "intention of grantor" is referred to in connection with construction, it properly refers only to the instrument itself. Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72; Shepherd v. Anderson, 192 S.W. 952; Union Water Power Co. v. Lewiston, 101 Me. 564, 568, 65 A. 67; Garrett v. Wiltse, 252 Mo. 699. (2) Defendants' use does not violate restriction "for residence purposes only, and not otherwise." John Hancock Mutual Life Ins. Co. v. Davis, 160 S.E. 393; Charlotte Construction Co. v. Cobbs, 143 S.E. 522; Sonn v. Heilberg, 56 N.Y.S. 341, 37 A.D. 515; Virgin v. Garrett, 169 So. 711; Hunter Tract Imp. Co. v. Corporation of Catholic Bishops, 167 P. 100; Kenwood Land Co. v. Hancock Inv. Co., 169 Mo.App. 715; Pulitzer v. Campbell, 262 N.Y.S. 743; Biltmore Development Co. v. Kohn, 39 S.W.2d 687; McMurtry v. Phillips Inv. Co., 103 Ky. 308, 45 S.W. 96. (3) Defendants' use does not violate restriction against "more than one residence or dwelling house." Bolin v. Tyrol Inv. Co., 273 Mo. 259, 200 S.W. 1059; Noell v. Remmert, 326 Mo. 148, 30 S.W.2d 1009; Breadon v. Paugh, 330 Mo. 127, 48 S.W.2d 853; Pank v. Eaton, 115 Mo.App. 171; In re Veeder, 65 N.Y.S. 517; Gallan v. Hussar, 158 N.Y.S. 895; Smith v. Scoville, 199 N.Y.S. 320; Pierce v. Kelner, 156 A. 61; DeLaney v. Van Ness, 193 N.C. 721, 138 S.E. 28, 57 A. L. R. 238; Robbins v. Bangor Ry. Co., 62 A. 136; Hutchinson v. Ulrich, 145 Ill. 336, 34 N.E. 556. (4) There is no violation by defendants of any provision of the trust deeds applicable to use of driveways, etc., because use of the streets was accorded the public in exchange for lighting by the city at public expense, and the deeds by their specific language permit such use by tenants and others. Mueller Furnace Co. v. Dreibelbus, 229 S.W. 240; May v. Dermont, 186 N.Y.S. 113; Village of Riverside v. Reagan, 270 Ill.App. 355; Scharer v. Pantler, 127 Mo.App. 433; Hogg v. Lobb's Ex., 7 Houston, 399.

Wendell H. Cloud for respondents.

(1) When covenants in the nature of restrictions on the fee are reasonable and within the policy of the law, they are valid and should be strictly enforced. The cardinal rule for construction of such covenants is that they must be viewed from their four corners and considered in the light of the entire context of the instruments containing them. Sanders v. Dixon, 114 Mo.App. 229, 89 S.W. 577; Thompson v. Langdon, 154 S.W. 808; Kenwood Land Co. v. Hancock Inv. Co., 155 S.W. 861; Bolin v. Tyrole Inv. Co., 160 S.W. 588; Missouri Province Educational Institution v. Schelct, 15 S.W.2d 604; Gardner v. Maffitt, 74 S.W.2d 604; Pierce v. St. Louis Union Trust Co., 278 S.W. 398; Pierce v. Harper, 278 S.W. 410; Hall v. Koehler, 148 S.W.2d 489; Pulitzer v. Campbell, 262 N.Y.S. 743; Garrett v. Wiltse, 252 Mo. 699, 161 S.W. 694. (2) Defendants' use of the property is violative of the restrictions imposed. Pierce v. St. Louis Union Trust Co., 278 S.W. 398; Pierce v. Harper, 278 S.W. 410; Hall v. Koehler, 148 S.W.2d 489; Robbins v. Bangor Ry. El. Co., 100 Me. 496, 62 A. 136; Dingeman v. Boerth's Estate, 239 Mich. 234, 219 N.W. 239; Seeley v. Phi Sigma Delta Fraternity House Corp., 245 Mich. 252, 222 N.W. 180; Linwood Park Co. v. Van Dusen, 58 N.E. 576; Neidlinger v. N. Y. Assn. for Improving Condition of the Poor, 200 N.Y.S. 852; Taylor v. Lambert, 124 A. 169; Baddour v. City of Long Beach, 18 N.E.2d 18; Cady v. McDowell, 1 Lansing, 484; Ainsworth v. Elder, 9 P.2d 1007; Trainor v. Le Beck, 139 A. 16; Dietrich v. Leadbetter, 8 S.E.2d 276; Carr v. Trivett, 143 S.W.2d 900; Kemp v. Arnold, 113 S.W.2d 143. (3) There has been no modification of the restrictions originally imposed in so far as the property in question is concerned.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

Action to enjoin alleged violation of restrictions against the use of certain property in Janssen Place addition in Kansas City for other than residence purposes. The owner by a cross action sought injunctive relief against plaintiffs' interference with its tenant's present use of the property. The trial court found for plaintiffs on the petition and cross action and granted the injunctive relief as prayed by plaintiffs. Defendants have appealed. We have jurisdiction since, according to the uncontradicted evidence, the property as now used has a value of $ 15,000, but its value will not exceed $ 6,000 if the restrictions are construed and enforced as contended for by plaintiffs. [Hall v. Koehler, 347 Mo. 658, 148 S.W.2d 489, 490; Art. 6, Sec. 12, Constitution of Missouri and Amendment of 1884, Sec. 3; Sec. 2078, R. S. 1939; 4 Mo. Stat. Ann., p. 2587, sec. 1914.]

Plaintiffs are the owners of nineteen lots (15 separate properties) in Janssen Place. Defendant Metropolitan Building Company (hereinafter referred to as defendant company) is the owner of a lot in said addition. A residence and garage building are located on the lot. Defendant Marie Harden is the tenant of defendant company and is occupying and using the described premises.

Janssen Place, located between Locust and Holmes Streets and just south of 36th street in Kansas City, was platted and the plat filed in 1897. The addition comprises 32 lots, numbered from 1 to 32 inclusive. The lots range from 75 to 100 feet in width and from 188 to 262 feet in depth. The lots face east or west on a 100 foot center parkway, extending from north to south, and containing driveways, parkways, walkways and ornamental plots, which are maintained at the expense of the property owners. The parkway is held in trust by trustees for the lot owners and has not been formally dedicated to public use, but a south entrance has been provided and connections made with Gillham Road. Originally the only entrance was from 36th street. The public is permitted to use the driveways in exchange for the maintenance by the city of street lighting in Janssen Place. A total of 19 large substantially constructed residences have been built and the majority were built shortly after the opening of the addition. All but two of the residences are occupied by their owners. There have been few changes in ownership of the respective properties, and for the most part these changes have been occasioned by the death of those who built the houses. The evidence shows that Janssen Place is a high class residence district and has long been maintained as such.

The deeds to the respective lots, made subsequent to the date of the plat, contain very detailed restrictions concerning the type and kind of improvements permitted and the use of the properties. The restrictions originally extended for a 20 year period, but provision was made for extension of the restrictions and they were subsequently extended to 1930 and thereafter to 1945. All restrictions are now in full force and effect, except for modifications as to a lot not here involved.

We are particularly concerned with only one of the restrictions, to wit, "that said land shall be occupied and used by said second party, its assigns, including all tenants for residence purposes only, and not otherwise." Another restriction provided that there should not be at any one time "more than one residence or dwelling house on any lot in Janssen Place." The other detailed restrictions are too extensive to be set out in this opinion.

The deeds to the various purchasers of lots in Janssen Place also referred to the trust deed covering the center parkway. This trust deed with its several provisions was incorporated by reference as fully as if set out in the several deeds to lot purchasers. It authorized and empowered the trustees to lay out, construct and maintain streets, pavements, sidewalks parks and ornamental grounds and pay for same by assessments against the respective lots in Janssen Place. The trust deed further authorized the trustees "to permit, suffer and allow the owner or owners of the said 32 lots, or any part of them with their respective families or the tenants under them and their respective families, from time to time to have free ingress and egress to and from such parts or either of them...