Gardner v. Maffitt

• Citation: 74 S.W.2d 604,335 Mo. 959
• Decision Date: 18 September 1934
• Docket Number: 32081
• Parties: Jeannette V.Gardner, widow and successor in interest of Frederick D. Gardner, v. Thomas S. Maffitt and Sarah P. Maffitt, Appellants
• Court: United States State Supreme Court of Missouri

74 S.W.2d 604

335 Mo. 959

Jeannette V.Gardner, widow and successor in interest of Frederick D. Gardner, v. Thomas S. Maffitt and Sarah P. Maffitt, Appellants

No. 32081

Supreme Court of Missouri

September 18, 1934

Appeal from Circuit Court of City of St. Louis; Hon. Moses Hartmann, Judge.

Affirmed.

Paul Bakewell, Jr., for appellants.

(1) The plain meaning of the plat, as exhibited by its outlines and its language, must be given effect. Caruthersville v Huffman, 262 Mo. 375; Buschmann v. St. Louis, 121 Mo. 536; Brader v. Carthage, 256 S.W. 549. (2) The building line, created by the plat, created an easement against each lot in favor of all other lots. Peters v Buckner, 288 Mo. 618, 232 S.W. 1027; King v. Union Trust Co., 226 Mo. 365; Milligan v. Balson, 214 Mo.App. 641, 264 S.W. 73. (3) There was no provision on the plat for the termination of that easement. It was an absolute and unconditional grant, which created an absolute and unconditional right. Robins v. Wright, 53 S.W.2d 1049. Such right was a right of property. Peters v Buckner, 288 Mo. 618. (4) It was not and could not thereafter have been changed or cut down by various deeds to the various lots. It is beyond the power of the grantors of a subdivision to change the building restrictions on lots, without the consent of all who purchased under such restrictions. Noel v. Hill, 158 Mo.App. 447; Spahr v. Cape, 143 Mo.App. 114. It cannot be said that the various deeds to the various lots, as thereafter made, cut down the grant which had been made by the plat. The provisions of such deeds were not uniform. Sevier v. Woodson, 205 Mo. 214. Such deeds might limit the duration of the new or additional restrictions, which such deeds themselves created, but, could not limit the easement which had been created and granted by the plat long prior to the execution of any of such deeds. (5) The right to enforce the building line was permanent, i. e., it was to remain in effect until it was changed by the consent of all the lot owners. Noel v. Hill, 158 Mo.App. 443; Hopkins v. Smith, 162 Mass. 444, 38 N.E. 1123. It was not "perpetual." Noel v. Hill, 158 Mo.App. 443. (6) By accepting the deed, which recited that Lot A was subject to two encumbrances, respondent was thereby estopped from disputing the existence of those separate encumbrances, and was also estopped from asserting that one of said encumbrances modified or changed the other. Litchfield v. Boogher, 238 Mo. 479; Fuller v. Devolld, 144 Mo.App. 96; 21 C. J. 1008, sec. 68. (7) The parties bought their lots encumbered with the covenants to each other. They are, therefore, in privity with one another. King v. Union Trust Co., 226 Mo. 368; Hisey v. Presbyterian Church, 130 Mo.App. 572. (8) This case involves title to real estate -- hence the jurisdiction of this court. Mo. Province Educational Institute v. Schlect, 322 Mo. 621, 15 S.W.2d 770.

Bryan, Williams, Cave & McPheeters for respondent.

(1) An action under the statute to quiet title is a proper proceeding to determine whether restrictions on real estate should be declared to have ceased to exist. Mo. Province Educational Institute v. Schlect, 15 S.W.2d 770. (2) Easements and restrictions on real estate can be created only by express grant. (a) The recording to a plat with building line thereon marked will not create a restriction. Kuhlman v. Stewart, 282 Mo. 108; Zinn v. Sidler, 268 Mo. 680; Whittaker v. Lafayette Realty & Inv. Co., 197 Mo.App. 377. (b) A building line on a plat of a subdivision is of no effect until a conveyance and upon such conveyance the plat becomes incorporated in the deed. 19 C. J., sec. 156, p. 945; Packer v. Woodbury, 129 A. 406; Whitehead v. Ragan, 106 Mo. 234; Loomis v. Collins, 272 Ill. 221, 111 N.E. 1003. (3) The provisions in the first conveyance (Sweringen deed) expressly defining the extent of the restrictions control and prevail over the plat of the subdivision. Kearney v. Kirkland, 279 Ill. 516, 117 N.E. 100; Loomis v. Collins, 272 Ill. 221, 111 N.E. 1003; Eckhart v. Irons, 128 Ill. 582, 20 N.E. 687; Am. Unitarian Assn. v. Minot, 185 Mass. 596. (4) The covenants of the kind in question are in derogation of the unrestricted use of the property and will not be extended or enlarged by limitation, and doubt in such matters should be resolved against the restrictions and in favor of the natural right of unrestricted use and free alienation of property. Mo. Province Educational Institute v. Schlecht, 15 S.W.2d 773; Kuhlman v. Stewart, 282 Mo. 108, 221 S.W. 31; Zinn v. Sidler, 268 Mo. 680, 187 S.W. 1172; Conrad v. Boogher, 201 Mo.App. 644; Kitchen v. Howley, 150 Mo.App. 497; Pank v. Eaton, 115 Mo.App. 171; Kenwood Lumber Co. v. Hancock Inv. Co., 169 Mo.App. 722; Scharer v. Pantler, 127 Mo.App. 433. (5) The general words "ever," "never" and "forever" in the first conveyance (Sweringen deed) must give way to the particular specification of twenty-five years as duration of the restriction. Dooley v. Greening, 201 Mo. 354; Guffey v. O'Reiley, 88 Mo. 421; Am. Unitarian Assn. v. Minot, 185 Mass. 589; Easterbrook v. Hebrew Society, 85 Conn. 280; 18 C. J., sec. 227, p. 268. (6) The deed to the respondent from the Fandel Realty Company imposed no personal liability upon the respondent nor any burden or restriction on the property conveyed beyond that already against it in the hands of the grantor, Fandel Realty Company. Spahr v. Cape, 143 Mo.App. 128; Hall v. Morgan, 79 Mo. 52; Walker v. Goodsell, 54 Mo.App. 634; Percival v. Williams, 82 Vt. 531; Van Duyn v. Chase & Co., 149 Iowa 222; Farmers Loan, etc., Co. v. Penn Plate Glass Co., 186 U.S. 457.

OPINION

Atwood, P. J.

This is an appeal from a judgment in favor of plaintiff, Frederick D. Gardner, in an equity proceeding to remove the cloud of a building line restriction from Lot A of Rex Subdivision of the north half of Block 3892 in the city of St. Louis, Missouri. Plaintiff died after the appeal was allowed and before its submission and Jeannette V. Gardner, his widow and successor in interest herein, was substituted as party respondent.

The lot in question was a part of land owned and platted as a subdivision by the Rex Realty Company, plat thereof being filed October 3, 1895, and recorded in plat book 15 at page 86 in the office of the Recorder of Deeds of the City of St. Louis, embracing lots designated thereon as A, B, C, D, E, F, G, H, I, J, K, L and M of Rex Subdivision of the north half of Block 3892. The following paragraph appears in the certificate indorsed upon said plat:

"A building line for each of said lots is hereby established fifty feet southwardly from and parallel to the South line of Pine street, and no building is to be erected on said lots extending North of said line; but the steps and platform in front of the entrances may extend eight feet beyond the building line."

The first part of the subdivision sold and conveyed by the Rex Realty Company was Lots B, C and the east five feet of Lot D, Martha J. Sweringen being the purchaser thereof by deed dated October 17, 1895, and recorded in Book 1306 at page 297 in the office of said recorder of deeds. This conveyance contained the following provisions, purporting to subject all of thirteen lots comprising said subdivision to certain restrictions and limitations:

"PROVIDED Nevertheless, and the conveyance hereby made is subject to these reservations, easements, restrictions, covenants and conditions, that shall remain in full force and effect for twenty-five years from the date of their deed, that is to say:

"1. The building line of the lot hereby conveyed shall be fifty feet from and parallel with the South line of Pine Street, as shown on said plat; and no building, or any part or portion thereof, shall, at any time, be erected or placed upon the space between said building line and said street; nor shall any projection of said building, of whatever character, be permitted to extend into or encroach upon said space, except that the steps and platform in front of the main door may extend over said building line not to exceed eight feet.

"2. But one building shall be erected or placed upon said lot, and such building shall never be used or occupied for any purpose except for that of private residence exclusively; nor shall any part or portion thereof ever be used or occupied except solely as a residence; nor shall such building be arranged or ever used or occupied as flats; nor shall said lot or any part thereof ever be used or occupied for trade or business of any kind whatever.

"3. As appurtenant to the residence and to be used only in connection with it, an outhouse, stable or other subsidiary building may be erected on the lot hereby conveyed.

"4. No building, the actual cost of which is less than Ten Thousand Dollars, shall be erected on said lot; nor shall any fence or enclosure of any kind be put on the side line of the lot between the street and the building line; nor shall the existing grade of the lot, for a distance of sixty feet from the street, be changed more than twenty-four inches, unless by consent of the party of the first part and of the owner of the adjoining lot on each side.

"And the said party of the second part accepts this conveyance subject to the easements, restrictions and conditions above set forth, and for herself, her heirs and assigns, covenants to and with the party of the first part, its successors and assigns, that the said party of the second part will, and that her heirs and assigns shall forever faithfully observe and perform said several restrictions and conditions, and each of them. And if the said party of the second part, or any person claiming under her, shall at any time, violate or attempt to violate, or shall omit to perform or observe any one of the foregoing...