Charlot v. Regents Mercantile Corporation

• Decision Date: 08 May 1923
• Docket Number: No. 17768.,17768.
• Parties: CHARLOT v. REGENTS MERCANTILE CORPORATION et al.
• Court: Missouri Court of Appeals

251 S.W. 421

CHARLOT v. REGENTS MERCANTILE CORPORATION et al.

No. 17768.

St. Louis Court of Appeals, Missouri.

May 8, 1923.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Suit by Fred S. Chariot against the Regents Mercantile Corporation and another, for an injunction. Judgment for defendants, and plaintiff appeals. Affirmed.

A. E. L. Gardner, of Clayton, for appellant.

Henry S. Caulfield, of St. Louis, for respondents.

NIPPER, C.

Plaintiff owns a lot, on which is located his residence, in subdivision No. 1 of University Heights, being a portion of what is known as University City, St. Louis county, Mo. He brings this action by injunction, and seeks to enjoin the defendant from using the buildings located on block No. 4 in said University Heights as a storage warehouse, or for any other purpose than the purposes for which said block No. 4 was reserved and restricted by the terms of a certain "declaration of trust and agreement." The action was made returnable to the May term, 1918, of the circuit court of said county. The University Heights Realty & Development Company, which was the owner of the subdivision known as University Heights, in January, 1905, executed what is termed a "declaration of trust and agreement." The validity of this agreement and its provisions is not questioned, and the record discloses that it was made for the benefit of all persons who had at the time of its execution, purchased lots in said University Heights, or who may thereafter purchase such lots.

Plaintiff contends that, by virtue of certain restrictions described in the agreement, defendants are not entitled to use the buildings located on block No. 4 for storage purposes, while defendants contend that block No. 4 is excepted from the provisions of this trust and agreement, or, if not excepted, that plaintiff and those for whom he speaks are guilty of such ladies as would prevent them in equity from maintaining this action.

The trial court found for the defendants, and plaintiff appeals.

At the time of the execution of this trust and agreement, there were located on block No. 4 the same buildings which are now located there, but at that time the buildings were occupied by a printery and office buildings of the publication known as the Woman's Magazine, a publication owned by the Lewis Publishing Company which derived its name from E. G. Lewis, the principal owner, who was also the principal stockholder of the University. Heights Realty & Development Company. The Regents Mercantile Corporation, one of the defendants herein, acquired block No. 4 in 1912, and thereafter leased the buildings located thereon to the Woman's National Publishing Company, which in turn assigned this lease to the Orcutt Storage, Packing & Moving Company. This company has since occupied the premises and used the buildings thereon for the purpose of conducting a general storage business, the buildings being used as warehouses in which were stored automobiles, household goods, etc. One of the buildings on this block is known as the Woman's Magazine building. It is a beautiful five-story structure, octagonal in shape. Adjacent to this building, and on the same block, is what is known as the Printery building. These buildings were begun in 1903, and completed in the latter part of 1905, the original cost being between $300,000 and $350,000. It seems that the storage and moving company first took space in the building in January, 1917. The purchase by the mercantile corporation was made from the trustee in bankruptcy of the Lewis Publishing Company, the purchase price being $95,000. E. G. Lewis was president of the Regent Mercantile Company. This same Lewis was connected with all of these various enterprises which we have mentioned, except the storage company.

We deem it necessary, in order to properly understand the questions presented, to set out a number of the provisions of this "declaration of trust agreement."

"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 specifically set forth in article III 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.

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"Section 1. No building other than a private dwelling house, and stable and out buildings appurtenant thereto, shall be erected on any of said lots, nor shall any lot or part thereof be, used or occupied for any but private residence purposes, nor by any other person or persons than those of the Caucasian race (except that persons of other race may reside upon any of said lots while employed as servants in the family of the owner or owners of said lots and not otherwise). Not more than one dwelling house shall be erected on any one lot.

"This section shall not be construed so as to permit to be erected or maintained upon any of said lots any inn or hotel, flat, apartment house, boarding house, or lodging house, it being the intention hereby to prohibit the erection or use of any building for any such purposes, subject to the reservations contained in section 5 of this article.

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"Section 5. The above restrictions in this article contained shall...