Bub v. McFarland
| Decision Date | 06 June 1917 |
| Docket Number | No. 15155.,15155. |
| Citation | 196 S.W. 373 |
| Parties | BUB et al. v. McFARLAND. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.
"Not to be officially published."
Suit by Katherine Bub and others against Lucy A. McFarland. From judgment for defendant, plaintiffs appeal. Affirmed.
L. Frank Ottofy, of St. Louis, for appellants. Jesse McDonald and Henry S. Caulfield, both of St. Louis, for respondent.
This is a suit in equity to enjoin the alleged violation by defendant of certain building restrictions. The learned trial judge, sitting as a chancellor, found the issues in favor of defendant and dismissed plaintiffs' bill, whereupon plaintiffs appealed to this court.
Defendant at the time of the institution of the action was proceeding to erect a certain building upon lots 1 and 2 of block 2 in the tract of land known as University Heights, in St. Louis county. The suit is brought by a number of lot owners in said University Heights, and proceeds upon the theory that defendant was about to erect a three-story apartment, or tenement structure, upon her lots mentioned, in violation of certain building restrictions alleged to have been imposed thereupon by a certain "declaration of trust and agreement," of date January 19, 1905, executed by the University Heights Realty & Development Company, a corporation, with, to, and for the benefit of all those persons who had purchased, and those who might thereafter purchase, and from time to time hold and own, any of the several lots in said University Heights, as designated on a certain plat theretofore recorded in the office of the recorder of deeds of St. Louis county. It appears that the University Heights Realty & Development Company was then the owner of the entire tract, but had contracted to sell certain lots.
It is conceded that such restrictions as are sought to be imposed upon defendant's lots by the "declaration of trust and agreement" above mentioned are valid and binding restrictions and limitations upon defendant's use of her property. At the trial it was stipulated that in an action in equity in the United States District Court for the Eastern Division of the Eastern Judicial District of Missouri one Matt G. Reynolds was duly appointed and qualified as receiver for the property and assets of the University Heights Realty & Development Company, including the lots now owned by defendant, and that thereafter, on May 8, 1912, the receiver duly sold said two lots at public auction to S. M. Walters, who thereafter conveyed the same to defendant. The decree pursuant to which the receiver made such sale was introduced in evidence. It was also made to appear that, pursuant to an order of the then United States Circuit Court in and for the Eastern Judicial District of Missouri, the said receiver executed a conveyance, of date October 19, 1911, and duly recorded, whereby certain trustees chosen by the property owners in the tract in accordance with the terms of the "declaration of trust and agreement" supra, and their successors, were invested, inter alia, with the trust, powers, and duties which originally devolved upon the University Heights Realty & Development Company by virtue of said "declaration of trust and agreement."
The provisions of the "declaration of trust and agreement" here pertinent (certain portions of which we italicize) are as follows:
"Whereas, it is also the purpose and intention of said company to create, in respect of each and every of said lots (except certain lots reserved for retail business purposes, and for school and church purposes, as hereinafter specially set forth in article 3 hereof), certain restrictions, conditions, and easements, in order that the character of the lots in said University Heights as high-grade residence property may be established and maintained for the benefit of the persons who may hereafter own or occupy said several lots," etc.
We insert here a portion of a plat of...
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Matthews v. First Christian Church of St. Louis
... ... are respectively reserved, or for private residence purposes ... as aforesaid, to which purposes they are hereby expressly ... restricted, into whosesoever hands they may come." [For ... these restrictions in full see Bub v. McFarland (Mo ... App.), 196 S.W. 373.] Our decision in the Britton case, ... recognizes the right of property owners to specify the uses ... to which land may be put and their right to prevent use for ... any purpose not included. In other words, they may limit the ... land use to specified purposes, ... ...
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Barnes v. Anchor Temple Ass'n
...by injunction, at the owner's instance, restraining and preventing violations of the building restrictions. * * *' See also Bub v. McFarland, Mo.App., 196 S.W. 373; Scallet v. Stock, 363 Mo. 721, 253 S.W.2d 143; Cowherd Development Co. v. Littick, 361 Mo. 1001, 238 S.W.2d 346; and Proetz v.......
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Britton v. School Dist. of University City
...and Cornell Avenue by the trust agreement. The restrictions on these lots were considered by the St. Louis Court of Appeals in Bub v. McFarland, 196 S.W. 373. A part of the plat of University Heights will be found that opinion. The building in question is located on a part of lot one in blo......
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Charlot v. Regents Mercantile Corporation
...purposes as aforesaid, to which purposes they are hereby expressly restricted, into whosoever hands they may come." In Bub v. McFarland (Mo. App.) 196 S. W. 373, the question of the construction of a portion of this same declaration of trust and agreement was before this court, and on page ......