Fete v. Foerstel
| Decision Date | 15 July 1911 |
| Citation | 139 S.W. 820,159 Mo.App. 75 |
| Parties | HENRY FETE et al., Respondents, v. HENRY FOERSTEL et al., Appellants |
| Court | Missouri Court of Appeals |
Argued and Submitted April 5, 1911
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
Judgment affirmed.
Buder & Buder for appellants.
(1) The law favors the free and untrammeled use of real property. Restrictions in conveyances of the fee are regarded unfavorably, and are therefore strictly construed. Hutchinson v. Ulrich, 145 Ill. 33; Eckart v Irons, 128 Ill. 568; 6 Am. and Eng. Ency. Law (2 Ed.) 513. (2) The covenant plaintiffs are seeking to enforce is merely a personal covenant, and inures to the benefit of the grantor only, and is enforceable only by him, his heirs and devisees. Doerr et al. v. Cobbs, 123 S.W. 547; Hisey v. Church, 130 Mo.App. 566. (3) One in default has no standing in equity to compel performance by another party similarly situated, and he who seeks to enforce a covenant against another must be without fault. He who seeks equity must do equity. Imp. Co. v. Tower, 158 Mo. 282; Pomeroy's Eq. Jur., secs. 3, 4; Warvelle on Vendors, 73-76; Bishpham's Prin. of Equity, secs. 67-69; Irwin v. Bleakley, 67 Pa. St. 24; Vawter v. Bacon, 89 Ind. 565; Cronk v. Trumble, 66 Ill. 18; Southworth v. Hopkins, 11 Mo. 331; Turner v. Mellier, 59 Mo. 526; Electric, etc. , Co. v. Gill, 125 Mo. 140; Rosenburg v. Jones, 118 Mo. 559; O'Reilly v. Diss, 41 Mo.App. 184. (4) When lots are laid out with an established front, improvements erected fronting other than the established front is purely a violation of the restriction. Cook v. Benson, 62 Ia. 170. (5) Where specific performance is sought the contract must be certain and mutual. Wendover v. Baker, 25 S.W. 918; Paris v. Haley, 61 Mo. 453; Taylor v. Williams, 45 Mo. 80. (6) It requires a much stronger case to maintain a bill to enforce specific performance than to resist such bill. Veth v. Gerth, 92 Mo. 67. (7) Where the circumstances surrounding a contract have so entirely changed as to render its enforcement inequitable, or where its enforcement would entail greater injustice than it would remedy, covenants of restriction will not be enforced. Pomeroy's Eq. Jur., 400; Story's Eq. Jur. pp. 750, 769-787; Bispham's Prin. of Eq., 578; Jackson v. Stephenson, 156 Mass. 496; Trustees v. Thatcher, 87 N.Y. 311; Charteri's Black Coal Co. v. Mellon, 152 Pa. 286; Starkie v. Richmond, 155 Mass. 188. The petition alleges that the scheme in 1888 was to make the property in question, Harlem Place, a high class residence property. Where the purpose of a certain restriction has failed or been abandoned, courts of equity will refuse to enforce the same. Columbia College v. Thatcher, 87 N.Y. 311; Scharer v. Pantler, 127 Mo.App. 317. (8) 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 benefits 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. Competent and sufficient proof must be furnished of the intention and that the defendant bought with actual or constructive notice of it. Doerr et al. v. Cobbs, 123 S.W. 547; Coughlin v. Barker, 46 Mo.App. 63.
H. C. Sprague and Franklin Miller for respondents.
(1) Proper building line restrictions will be enforced in equity. Coughlin v. Barker, 46 Mo.App. 54; Meriwether v. Joy, 85 Mo.App. 634; Scharer v. Pantler, 127 Mo.App. 433; Hisey v. Church, 130 Mo.App. 566; Doerr v. Cobbs, 146 Mo.App. 342. (2) It is not necessary that the purpose of the restrictions be expressed in the deed, if the surrounding circumstances indicate the purpose. Coughlin v. Barker, supra; Meriwether v. Joy, supra; Doerr v. Cobbs, supra. (3) The question whether a restrictive covenant runs with the land is material in equity only on the question of notice; if it runs with the land, it binds all owners, whether they have knowledge of it or not; if it does not, then, in order to enforce the easement, it is essential that the owner has taken with notice of it. Coughlin v. Barker, supra; Meriwether v. Joy, supra; Hisey v. Church, supra; Doerr v. Cobbs, supra. (4) There is no abandonment of the general scheme or any substantial relaxation of it in the case at bar, for every such relaxation operates as a dispensation of the servitude pro tanto, and such dispensation in this case is negligible. Coughlin v. Barker, supra; Scharer v. Pantler, supra.
This is a suit to enjoin defendants, Henry Foerstel and wife and one Moore, from proceeding with the erection of a building which the Foerstels have commenced, Moore being the contractor, on Arthur avenue, in Harlem Place, being on lot 18 of city block 4771, in the city of St. Louis. As the excavation has been made and the foundation walls laid, the north wall of the foundation is ten feet south of the south line of Arthur avenue, on which street the lot fronts. This lot is in what is called Harlem Place, a subdivision of the city, originally laid out by the Western Mutual Land & Improvement Company. The plat of this subdivision filed shows it to be divided into lots and blocks with streets and alleys. It is in form a parallelogram; its length from east to west is about 2892 feet; its width from north to south about 962 feet. It appears that the tracks of the St. Louis & San Francisco Railroad run diagonally across the west end of the tract or subdivision, so that a tract 962 feet from north to south, extends about 488 feet from east to west on the south side and about 854 feet on the north side lies west of the railroad, and the main body of it, a tract 2404 feet on the south line and 2038 feet on the north line, 962 feet wide, lies east of the railroad. While the portion west of the railroad track was subdivided on the plat, it appears by the testimony that in point of fact there were no streets dedicated nor lots subdivided in this west end and that some time after the filing of the plat, the original owner, the Western Mutual Land & Improvement Co., by mesne conveyances, had sold off this portion west of the railroad as acre property, never having sold any of it as lots and not selling it with any restrictions as to building line or otherwise. That is, the part of the subdivision west of the railroad track was abandoned as lots and blocks and residence property. That portion of it east of the railroad track, and which comprises about three-fourths of the original subdivision, and in which portion the lots of plaintiffs and of defendants are situated, was not only subdivided into lots with streets and alleys, but in all the conveyances which were made by the Western Mutual Land & Improvement Company of lots in this eastern part of the subdivision, the following conditions and restrictions were contained, to-wit:
These plaintiffs here and their grantors and Mr. and Mrs. Foerstel, who were seized of an estate in entirely in the lot they purchased, as well as all other owners of lots in this part of Harlem Place east of the railroad tracks, hold under deeds to their several grantors containing the above conditions. In the deed to the Foerstels from one Jungmann, who purchased from the Western Mutual Land & Improvement Co., under a deed with the foregoing conditions, there is this covenant: "This conveyance is made subject, however, to the conditions and restrictions, and easement over the rear six feet for use as an alley, as set out in deed recorded in book 1223, page 303." This deed recorded in book 1223 above referred to, is the deed from the Western Mutual Land & Improvement Company to Jungmann, and it contains the covenants hereinbefore referred to as to restrictions, etc.
The plaintiffs, alleging that the Foerstels, as owners, and Moore, as contractor with them, were about to violate this covenant as to the twenty-foot building line, aver that each of the several plaintiffs claim under deeds from the Western Mutual Land & Improvement Company containing the restriction above set out and that at the time of the laying out of Harlem Place the Western Mutual Land & Improvement Company was the owner of all the land contained in it, aver that the tract was so situate and the lots in it adjoined each other so as to form a compact rectangular tract or parcel of land, suitable and conveniently located for residence...
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