Feely v. Birenbaum

• Decision Date: 24 May 1977
• Docket Number: Nos. 37743,37736,s. 37743
• Citation: 554 S.W.2d 432
• Parties: Vincent J. FEELY et al., Plaintiffs-Respondents, v. Louis I. BIRENBAUM et al., Defendants-Appellants. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 432

554 S.W.2d 432

Vincent J. FEELY et al., Plaintiffs-Respondents, v. Louis I. BIRENBAUM et al., Defendants-Appellants.

Nos. 37743, 37736.

Missouri Court of Appeals, St. Louis District, Division Three.

May 24, 1977.

Motions for Rehearing and/or Transfer Denied July 21, 1977.

Applications to Transfer Denied Sept. 12, 1977.

Goldstein & Carey, Kathy Carey, Stanley E. Goldstein, Clayton, for defendants-appellants.

Schmitz & Fischer, Mary Stake Hawker, J. Peter Schmitz, St. Louis, for plaintiffs-respondents.

GUNN, Judge.

Plaintiffs-respondents brought suit to enjoin and restrain defendants-appellants, two unrelated males, from residing together or with persons unrelated by blood, marriage or adoption at defendants' single family residence. The trial court found that the subdivision trust indenture applicable to defendants' residence prevented defendants from living together in their single family residence. The primary issue on appeal is whether the subdivision trust indenture proscribing the use of houses within the subdivision by more than one family interdicted defendants' use of their house with unrelated persons. We find no error in the trial court's interpretation of the trust indenture and affirm the judgment.

According to the stipulation of facts, defendants purchased a lot and house in a private residential area in University City known as Ames Place. The purchase was with knowledge of the recorded subdivision trust indenture which prohibited any residence lot owner "to erect or permit to be erected on said residence lots, or any of them, any flat or apartment house, or use or permit to be used any house or houses erected on any such residence lots as a flat or apartment house, or by more than one family. * * * " (emphasis added). The trust indenture was initially recorded in 1914 and extended to 1984.

Defendants moved into their house in June, 1971, and at or about the same time a woman identified only as Marsha Back became a regular resident in the house with defendants and remained there until January, 1975. Also, in September, 1971, a male law student moved into defendants' house to reside there for about nine months. It was agreed that none of the parties living in defendants' Ames Place house, including defendants, was ever related by blood or marriage.

Subsequently, plaintiffs as elected representatives of the Ames Place Association and pursuant to the authority invested in them by the trust indenture to enforce its provisions, filed suit to enjoin defendants from violating the trust indenture and forbid defendants' use of the house as other than a private residence for one family. ¹ There has been no challenge made as to the validity of the Ames Place single family structure as it applied to the defendants' property. Thus, the only substantive issue for the trial court's determination was whether the group of people living in the house (or even only the two defendants) could be characterized as "more than one family" within the meaning of that term in the trust indenture. The trial court found the issue against defendants and ordered that defendants and each of them be "enjoined and restrained from both regularly and consistently residing together at 324 Melville" (defendants' house) and "from residing regularly and consistently at said premises with any other person unrelated to him by blood, marriage or adoption."

Before discussing the central theme of this case the single family issue we dispose of two tangential issues raised by defendants. Defendants argue that as defendant Friedman had filed an affidavit with the trial court of his intention to move from the premises and sell his interest in the house to defendant Birenbaum that the case is moot. However, the record fails to disclose that defendant Friedman's intentions have been fulfilled. We thus have no evidence before us upon which to rule that the case is moot and cannot give consideration to defendants' argument in this regard. State ex rel. Freeze v. City of Cape Girardeau, 523 S.W.2d 123 (Mo.App.1975); Davis v. Long, 521 S.W.2d 7 (Mo.App.1975).

Defendants also assert the defense of laches, claiming that although defendants moved into their house in July 1971, suit was not brought against them until November, 1972 a 16 month lapse. Defendants argue that plaintiffs knew of defendants' living arrangement when they moved into the house and that the delay in bringing suit wrought an injustice upon defendants who had spent many hours refurbishing their house. Again, defendants allegations as to damages were not proved. Nothing regarding damages appears in the stipulation of facts, so there is nothing for us to consider as to defendants' alleged damages. Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625 (Mo.App.1975). The record is therefore barren of proof that any disadvantage or prejudice was worked upon defendants; consequently, laches as a defense is unavailable to defendants on this appeal. L___ v. R___, 518 S.W.2d 113 (Mo.App.1974).

We now reach the cynosure of this case whether the trial court was correct in construing defendants' use of their house to be "by more than one family" within the meaning of the trust indenture proscription. We believe the trial court was correct in its finding and conclusion.

We recognize that there is no single definition of the word "family," but, rather, the term has been construed according to the particular facts presented on the issue. ² As stated in Boyher v. Gearhart's Estate, 367 S.W.2d 1, 5 (Mo.App.1963), "(t)he term family is one of great flexibility and is capable of many different meanings according to the connection in which it is used." Steva v. Steva, 332 S.W.2d 924 (Mo.1960), defines family as follows l.c. 926:

"The term 'family' * * * 'has been defined as a collective body of persons under one head and one domestic government, who have reciprocal, natural, or moral duties to support and care for each other.' "

And in State ex rel. Ellis v. Liddle, 520 S.W.2d 644 (Mo.App.1975), a zoning ordinance was interpreted as not limiting the term "family" to persons related by blood, marriage or adoption. However, the zoning ordinance involved in Liddle specifically provided that a limited number of persons not related by blood, marriage or adoption were to be included within the term "family," so that case is not felicitous here.

In interpreting the meaning of the words in the trustindenture restricting the use of the Ames Place homes "by more than one family," we must look at the plain and obvious purpose of the restriction and give the terms used their ordinary and usual meaning in the connection in which they are used. Andrews v. Metropolitan Bldg. Co., 349 Mo. 927, 163 S.W.2d 1024 (1942); Greenberg v. Koslow, 475 S.W.2d 434 (Mo.App.1971); Boyher v. Gearhart's Estate, supra. The test for determining the meaning of commonly used words "should be their ordinary and popular meaning; and they should not be construed in the broadest sense possible to include meanings to which they would not be applied by most people." Cleaver v. Central States Life Ins. Co., 346 Mo. 548, 142 S.W.2d 474, 477 (1940). Using this gauge, can we find that the trial court erred in concluding that a group of up to four unrelated adults living together was not a "family" within the trust indenture restriction? Indeed not. We believe that within the context and purpose of the Ames Place trust indenture, the stricture on the use of each house to one family could properly be construed as intending to limit the use to a single family related by blood, marriage or adoption as was construed by the trial court.

Ames Place is a single family subdivision, well maintained by upper middle income residents with private streets closed to through traffic. As such we believe that the situation here is much the same as confronted by the court in the companion cases of Pierce v. St. Louis Union Trust Co., 311 Mo. 262, 278 S.W. 398 (1925), and Pierce v. Harper, 311 Mo. 301, 278 S.W. 410 (1925). In the Pierce cases, the restrictive covenants of deeds affecting Vandeventer Place in St. Louis, a private, single family residential subdivision, restricted use of the houses to the owners "with their respective proper families . . . (but not exceeding one family for or in respect to each of said lots) * * * " Upon a charge that one of the lot owners was permitting "more than one proper family per lot" to make use of her residence (actually, the lot owner was running a boarding house), the court held in Pierce v. Harper, supra 278 S.W. at 412:

"(T)hat the intention of the parties to the original deed, as disclosed by the context of said deed and the surrounding facts and circumstances, and the intention of the present owners of property in said addition, as disclosed by their practical construction of such covenants, evidenced by their own acts and conduct, clearly makes manifest that such owners intended, and still intend, that Vandeventer Place shall be and remain a high class, exclusively residential district, and that the meaning, force, and effect of said restrictive covenants is to limit the use of each dwelling house or home on each lot of the addition to one single family."

It was also held that allowing a residence to be used by persons "not members of one proper family" was:

"(N)ot as a private dwelling house or home for the use or occupancy of one single family. Such use is in derogation of the restrictive covenants affecting said premises." Id. 278 S.W. at 412.

We find it evident that the court in the Pierce cases was interpreting a single family use restriction similar to the one in this case as a restricted use to the designated "one single family" or "one proper family" and meaning that such use was limited to persons related by blood, marriage or adoption; that the interpretation placed upon the trust indenture restriction by the trial court in this case, limiting the use to families related by...