Compton Hill Imp. Co. v. Tower's ex'Rs.

• Decision Date: 12 November 1900
• Citation: 158 Mo. 282,59 S.W. 239
• Parties: COMPTON HILL IMP. CO. v. TOWER'S EX'RS et al.
• Court: Missouri Supreme Court

59 S.W. 239

158 Mo. 282

COMPTON HILL IMP. CO. v. TOWER'S EX'RS et al.

Supreme Court of Missouri, Division No. 2.

November 12, 1900.

DEED — MUTUAL RESTRICTIONS — INJUNCTION.

T., owning a tract with a frontage of 610 feet on a street, and a depth of 295, conveyed the south 100 feet to N. by deed reciting that the conveyance was on condition that N., or his heirs or assigns, should not erect on the premises any dwelling nearer than 50 feet to the street, or put on the street front any building except one dwelling house and appurtenances, to cost not less than $7,500, and that, in consideration of the acceptance of said conditions, T. subjected all the remainder of his tract to the same conditions and restrictions, and that it should be sold only in lots of the size of that conveyed to N. or larger. Held, that the restrictions were mutual, and that N.'s grantee having subdivided his lot, so that the rear became part of two other lots, on one of which a house and stable were built, so that the stable was on the part taken from N.'s lot, T. could not be enjoined from selling the remainder of his tract in lots smaller than the one sold to N.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Suit by the Compton Hill Improvement Company against George F. Tower's executors and devisees. Bill dismissed, and plaintiff appeals. Affirmed.

Prior to the conveyance upon which this bill for injunction is predicated, George F. Tower was the owner of a parcel of land in the city of St. Louis containing about 4.85 acres, and known as "City Block 1,366," with a frontage of 610 feet on the east line of Grand avenue, and a depth eastwardly of 295 feet. On December 4, 1899, said Tower, by warranty deed, conveyed the southern 100 feet of said land to William F. Nolker for $9,000. The deed contained the following conditions and restrictions: "Provided, however, and this conveyance is upon condition, that the grantee herein shall not, nor shall his heirs or assigns, erect, or allow to be erected, on the premises above described, any dwelling nearer than 50 feet to the east line of Grand avenue. The grantee shall not, nor shall his heirs or assigns, erect or put upon the Grand avenue front of the premises hereby conveyed a building of any kind save and except one dwelling house and appurtenances, and such dwelling house shall not cost less than $7,500. The grantee shall not, nor shall his heirs or assigns, erect or permit any business establishment to be erected on the premises hereby conveyed, the property being conveyed for residence purposes only, nor shall he or they create or permit any nuisance to be created or maintained on said premises or any part thereof. In the event of the breach of any of the foregoing conditions, the estate hereby granted and conveyed shall end, and the title to the property aforesaid shall forthwith revert to the grantors herein, their heirs and legal representatives. And, in consideration of the acceptance of the foregoing conditions by the grantee and of the purchase money aforesaid, the said grantors, George F. Tower and wife, do by this conveyance subject all property now owned by them in said city block No. 1,366 to the same conditions and restrictions above set forth, so that neither of the said grantors will, nor their heirs or assigns shall, hold, use, or convey their said property, or any part thereof, except in conformity with and subject to the same conditions and restrictions as herein stated, and in case of sale said property shall be sold only in lots of the size of the lot hereby conveyed or larger." This deed was recorded December 10, 1889. On January 6, 1890, Nolker conveyed the 100 feet to Henry Haarstick, the president of the Compton Hill Improvement Company, and on the following day (January 7, 1890) Mr. Haarstick conveyed the same to said company. In the negotiations which led up to the deed of Tower to Nolker, Julius Pitzman acted as the agent of Nolker, and drew the conveyance, and Moses Greenwood, a real-estate agent, represented Mr. Tower. Nolker was a stockholder in the Compton Hill Improvement Company. The evidence very clearly discloses that Pitzman was notified by Greenwood that Tower would not sell to the Compton Hill Company, and would insist on knowing definitely the name of the buyer and the purpose to which the 100 feet was to be put. Pitzman told him he would let him know the next day. Next day Pitzman told Greenwood that Nolker was the man who desired to purchase the property, and "would put a very handsome house on it." Pitzman at that time was secretary of the Compton Hill Company, and had the management of its addition. He prepared the special covenants as to the restrictions on the lot, which Tower signed without legal advice. He testified: "I had a plat showing the contemplated subdivision of Compton Heights. I told him [Greenwood] we were trying to make arrangements with Mr. Nolker to build a very fine house on the corner of Grand and Longfellow avenues, and we considered it of very great importance to get him, but the lot 118 feet, which was all we had, would not be sufficient, and we wanted 100 feet more." "I showed...