Doerr v. Cobbs

• Decision Date: 30 November 1909
• Parties: DOERR et al. v. COBBS.
• Court: Missouri Court of Appeals

123 S.W. 547

DOERR et al. v. COBBS.

St. Louis Court of Appeals. Missouri.

November 30, 1909.

1. COVENANTS (§ 79) — ENFORCEMENT — PERSONS ENTITLED.

Where a common grantor of adjacent lots in a subdivision conveyed them at different times to different grantees, subject to restrictive covenants, the restriction in the junior conveyance was not for the benefit of the holders of the title under the senior conveyance, unless the covenant in the junior conveyance, or the extraneous facts, showed that the restriction was for the benefit of such holders; and, in the absence of such showing, the covenant must be treated as inuring to the benefit of the common grantor only, and as enforceable only by him, his heirs, or devisees.

2. COVENANTS (§ 79) — ENFORCEMENT — PERSONS ENTITLED.

Where the common grantor of adjoining lots sells one and retains the other and puts in the deed of the one sold a restrictive covenant intended for the benefit of the lot retained, and he subsequently sells the latter lots to a third person, the covenant passes to the latter as an appurtenant, or as an easement; and the third person may enforce it against the owner of the lot first conveyed, provided he takes with notice of the covenant.

3. COVENANTS (§ 79) — ENFORCEMENT — PERSONS ENTITLED.

A bare intention of a common grantor conveying adjacent lots in a subdivision to different grantees at different times subject to restrictive covenants to make the covenants inure to the benefit of all persons claiming under him by prior or subsequent deeds, is not sufficient, but the intent must be established by competent proof, and that subsequent purchasers bought with actual or constructive notice of it.

4. COVENANTS (§ 79) — ENFORCEMENT — PERSONS ENTITLED.

A common grantor of lots in a subdivision conveyed lots at different times to different persons subject to restrictive covenants. There was no proof of a general plan for the improvement

of the lots, and there was nothing to show that the common grantor did not own other lots at the time of the junior conveyance. Held not to show an intention of the common grantor to make the retrictions inure to the benefit of all persons claiming under the senior and junior conveyances; and one claiming under the senior conveyance could not enforce the restriction against one claiming under the junior conveyance, though the same covenant was inserted in some deeds forming links in the chains of title of both parties.

Appeal from St. Louis Circuit Court; Virgil Rule, Judge.

Action by J. Adam Doerr and another against Frank R. Cobbs. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Frank B. Coleman and L. P. Crigler, for appellant. William Baer, for respondents.

GOODE, J.

Plaintiffs and defendant own lots in what is known as "Reber's subdivision in the city of St. Louis," and in city block No. 4068. The lot of plaintiffs fronts 50 feet on the south line of Odell avenue, running east and west, lies immediately west of an alley running north and south, and extends southward 190 feet to an east and west alley. The description of the property is the east 50 feet of lot 31, in city block 4068. Defendant owns a parcel of ground lying immediately east of the north and south alley, which therefore separates it from plaintiff's lot. Defendant's tract extends 190 feet east and west along the south side of Odell avenue, has a depth of 110 feet and 2 inches along the west line of Kingshighway, running north and south, and is described as lots 1 and 2 of block 4068, in Reber's subdivision. In September, 1908, defendant began to excavate on his lot for the purpose of putting up a building about 15 feet south of the south line of Odell avenue, whereupon plaintiffs instituted the present action to restrain him from doing so, basing the cause on restrictive covenants in deeds to the two lots forbidding the erection of a house less than 40 feet from the south line of Odell avenue. Deeds to the properties are meagerly shown in the abstracts of the record on which the case was submitted, and the dates of several of them are not given. The only conveyances affecting the title to plaintiffs' lot which are exhibited are these: First. Deed "from Margaret M. Reber, widow and executrix, to Flora R. Haydock, conveying lots 1 to 31 inclusive, in city block 4068, of Reber's subdivision," without restrictive covenants of any kind. The date of this deed is not given, but, as it included the parcel now owned by plaintiffs as well as that owned by defendant, the grantee in it, Flora R. Haydock, must be the common source of title. Second. The deed recorded in Book 856, p. 314, which was one from Flora R. Haydock, widow, to James F. Holden, conveying lot 31, block 4068, dated April 10, 1888, and containing this condition or covenant: "That neither said grantee nor any other person claiming under said grantee shall ever erect or build a house upon said premises at a distance less than 40 feet from the south line of Odell avenue and sixty feet from the west line of Kingshighway." Third. Deed "from Seaver et al. to plaintiffs, conveying the eastern 50 feet of lot 31, city block 4068, subject to restrictions contained in deed in Book 856, p. 314." The date of that conveyance is not shown, and the three conveyances, supra, are the only ones exhibited from plaintiffs' chain of title. The title of defendant was deraigned from Flora R. Haydock through five conveyances: First, deed from Wm. T. Haydock, as attorney in fact for Flora R. Haydock, a widow, to Herman Starck, dated May 5, 1890, conveying lots 1 and 2, city block 4068, of Reber's subdivision, and containing this clause: "That neither said grantee nor any other person claiming under said grantee, shall ever erect any house on said premises at a distance of less than forty feet from the south line of Odell avenue. The penalty for the violation of such restriction being that the property should revert to the grantor." Second, a deed from Herman Starck and wife to Alfred Boyle, conveying said lots without restrictions. Third, deed from Alfred Boyle to Simon Lederer, conveying said lots subject to "restrictions of record." Fourth, deed from Simon Lederer and wife to Louis R. McDermot, conveying said lots subject "to conditions and restrictions, if any, now affecting said property." Fifth, deed from Louis R. McDermot to defendant Frank R. Cobbs, conveying said lots "subject to restrictions thereon, if any." The date of none of said deeds, except the first, is given. Nothing is in proof regarding restrictions on the use of the properties of plaintiffs and defendant, except the excerpts quoted from several of the conveyances, supra. Margaret Reber had platted Reber's subdivision at some date not shown, and by the recitals in the record of the plat it appears said Reber had become the owner "of lot one of the Cooper tract," and had caused the same to be divided in the manner shown on the plat into what is denominated Reber's subdivision. The recitals further say all streets, avenues, and alleys colored brown on the plat, lying within the boundaries of the aforesaid lot and not theretofore condemned or dedicated to public uses, were dedicated to public uses thereafter. The plat showed Odell avenue to be 80 feet wide; that lot 1 of the subdivision had the dimensions on the south side of Odell and the west side of Kingshighway stated, supra; that it was bounded on the west side by a north and south alley 20 feet wide; that lot 31, of which plaintiffs' parcel is part, lies next west of said alley, fronts on the south line of Odell avenue, and extends southwardly along the west line of the alley the distance we have stated. The dimensions and location of the lots and avenues on the plat, and the recitals of which we have given the substance, are all that appears regarding what Margaret Reber did about the subdivision, and do not show she imposed any restriction on the use of the property or prescribed a building line along Odell avenue. The building restriction was imposed first by Flora R. Haydock, who bought all the lots in the Reber subdivision from 1 to 31, inclusive. Flora Haydock figures in the record, not as the person who devised the plan on which the subdivision was laid out, but as the mesne owner and grantor of the parcels now owned by the parties to this action and other lots. Neither does it appear, except in so far as the covenants quoted from some of the deeds may show the fact, that she had conceived or given publicity to any scheme for the improvement of the lots acquired by her from Margaret Reber, part of which were afterwards conveyed to different grantees.

The court below entered a decree perpetually enjoining defendant, his agents, servants, or employés, or any person claiming under him, from constructing on his ground any building less than 40 feet "from north line of Odell avenue." The word "north" must have been inserted in the decree by mistake; the intention being to say the south line. Nothing is said about this by the parties, who have briefed the case on the assumption that the injunction was intended to restrain the erection of a building closer than 40 feet to the south line of Odell avenue, and this will be treated as the effect of the decree.

The infirmity in the case for plaintiffs is...