Doerr v. Cobbs
| Decision Date | 30 November 1909 |
| Citation | 123 S.W. 547,146 Mo.App. 342 |
| Parties | J. ADAM DOERR et al., Respondents, v. FRANK R. COBBS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Virgil Rule, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
L. P Crigler, Frank B. Coleman for appellant.
(1) The petition does not state a cause of action in that if fails to allege any facts to show that plaintiffs have any rights under the alleged restriction on defendant's lot. Sanders v. Nixon, 114 Mo.App. 229; Haines v Einwachter, 55 A. 38; Badger v. Boardman, 16 Gray (Mass.) 559; Meriwether v. Joy, 85 Mo.App. 634; Coughlin v. Barker, 46 Mo.App. 60; Sharp v Ropes, 110 Mass. 381; DeGray v. Monmouth, 50 N.J.Eq. 329; Mulligan v. Jordan, 50 N.J.Eq. 363; McNichol v. Townsend, 67 A. 938. (2) The deed executed by Haydock as attorney in fact was clearly incompetent, irrelevant and inadmissible for any purpose without some showing of authority to execute it, and the admission of incompetent and irrelevant testimony is reversible error. Fountain v. Railway, 114 Mo.App. 684; Gunther v. Roy, 74 Mo.App. 601. (3) The motion in nature of a demurrer to the evidence should have been sustained for the reason that plaintiffs did not make out a cause of action in that they failed to show that any rights under the alleged restriction inured to their benefit. McNichol v. Townsend, 67 A. 938; Sharp v. Ropes, 110 Mass. 381; Dana v. Wentworth, 111 Mass. 291; Skinner v. Shepherd, 130 Mass. 180; Beals v. Case, 130 Mass. 140; Badger v. Boardman, 16 Gray (Mass.) 559; Meriwether v. Joy, 85 Mo.App. 634; Sanders v. Nixon, 114 Mo.App. 229; Coughlin v. Barker, 46 Mo.App. 60; Mulligan v. Jordan, 50 N.J.Eq. 363; DeGray v. Monmouth, 50 N.J.Eq. 329; Keates v. Lyons, L. R. 4 Ch. 218; Schreiber v. Creed, 10 Sim. 9; Master v. Hansard, 4 Ch. Div. 718; Renals v. Cowlishaw, L. R. 11 Ch. Div. 866. (4) There is not a scintilla of evidence that a building was to be erected at all. Until there is some need for an injunction, it is error to grant one. Sec. 3649, R. S. 1899; Lester v. St. Louis, 169 Mo. 237; 16 Am. and Eng. Ency. Law (2 Ed.), p. 361; Lorenz v. Waldron, 96 Cal. 243; Home Ins. Co. v. Nobles, 63 F. 642; High on Injunctions, pp. 36, 37. (5) A lotowner who has violated the building restriction contained in his deed fixing the building line at a certain distance from the street cannot restrain another lotowner from violating the same restriction. He who seeks equity must do equity. Schubert v. Eastman Realty Co., 25 O. Cir. Ct. Rep. 336; Olcott v. Shepherd Knapp Co., 185 N.Y. 584 (affirming 89 N.Y.S. 201); Hyman v. Tash, 71 A. 742; Leaver v. Gorham, 67 A. 111; Compton Hill Imp. Co. v. Tower, 158 Mo. 282; Southworth v. Hopkins, 11 Mo. 339; Secret Serv. Co. v. Gill, 152 Mo. 156. (6) Plaintiffs are claiming under deed from Haydock, dated April 10, 1888, hence they cannot possibly have any rights under a restrictive clause in a deed from same grantor conveying adjacent lots dated May 5, 1890. Summers v. Beeler, 48 L.R.A. 54; Mulligan v. Jordan, 50 N.J.Eq. 363; DeGray v. Monmouth, 50 N.J.Eq. 329; Roberts v. Skull, 58 N.J.Eq. 396; Hyman v. Tash, 71 A. 742; Leaver v. Gorham, 67 A. 111; Meriwether v. Joy, 85 Mo.App. 634.
William Baer for respondents.
(1) Plaintiff's petition stated a cause of action. Hall v. Wesser, 7 Mo.App. 57; Hisey v. Presbyterian Church Trustees, 130 Mo.App. 566. (2) The deed executed by Haydock as attorney in fact, was competent and admissible, there being no evidence on the part of appellant that Haydock did not have authority to execute such deed as attorney in fact. Appellant's source of title coming from Haydock, he cannot deny his grantor's title and right to convey. 13 Cyc. Law and Proc., p. 611. (3) The demurrer was properly overruled. Respondents established a cause of action. The restriction upon the use by appellant of the land ran with the land and was not a personal covenant. Sharp v. Cheatam, 88 Mo. 498; Hadley v. Bernero, 97 Mo.App. 314; Stevens v. Realty Co., 173 Mo. 511; Sanders v. Nixon, 114 Mo.App. 229; Whitney v. Railroad, 11 Gray 359; Chase v. Walker, 167 Mass. 293; Kirkpatrick v. Pershine, 24 N.J.Eq. 206; Coudert v. Sayre, 46 N.J.Eq. 386; Columbia College v. Lynch, 70 N.Y. 440; Meigs v. Milligan, 177 Pa. 66; Greene v. Creighton, 7 R. I. 1. (4) Appellant by demurring to the sufficiency of respondent's petition admits the existence of the facts therein alleged. This being so, appellant cannot complain that there was no evidence to establish that he was in the act of erecting a building. If it appears after verdict that the verdict or judgment could not have been given or the judgment rendered without proof of the matter omitted to be stated, the defect will be cured. State v. Sullivan County Court, 51 Mo. 522. After verdict, plaintiffs are entitled to the benefit of every reasonable inference from the facts alleged. Davis v. Jacksonville Line, 126 Mo. 69; Corpenny v. Sedalia, 57 Mo. 88; Ellsworth Coal Co. v. Quade, 28 Mo.App. 421. (5) 22 Cyc. 757; Sherlock v. Kansas City Belt Line, 142 Mo. 172.
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 fifty 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 fifty 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 fifteen 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 forty 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 plaintiff's 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 the 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 title under said grantee shall ever erect or build a house upon said premises at a distance of less that forty 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 fifty 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 plaintiff's chain of title. The title of defendant was deraigned from Flora R. Haydock through five conveyances: First, deed from William 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: 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...
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