Godfrey v. Hampton

• Decision Date: 19 April 1910
• Citation: 148 Mo. App. 157,127 S.W. 626
• Parties: GODFREY et al. v. HAMPTON.
• Court: Missouri Court of Appeals

127 S.W. 626

148 Mo. App. 157

GODFREY et al. v. HAMPTON.

St. Louis Court of Appeals. Missouri.

April 19, 1910.

1. COVENANTS (§ 134) — RESTRICTIVE COVENANTS — CONSTRUCTION — QUESTION OF FACT.

The word "flat" in a building restrictive covenant, prohibiting the erection of flats or tenement houses, has no technical meaning, and, where the testimony is conflicting as to whether a building is a flat or not, the question is one of fact.

2. COVENANTS (§ 21) — RESTRICTIVE COVENANTS — CONSTRUCTION.

The court, in construing restrictive covenants in a deed, should keep in mind the purpose to be achieved by the covenant.

3. COVENANTS (§ 51) — BUILDING COVENANTS — CONSTRUCTION.

The purpose of a restrictive covenant in deeds of lots abutting on a street prohibiting the erection of flats or tenement houses is to prevent a house from being used by more than one family, each living by itself on different floors, fitted up separately for housekeeping, and a construction of the covenant which will permit a two-story dwelling arranged for the use of two families, each keeping house by means of fixed conveniences on each floor, and each using a common front entrance, and each having separate entrances in the rear, will defeat the object thereof.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by William Godfrey and another against Dorcas M. Hampton. From a judgment for plaintiffs, defendant appeals. Affirmed.

Paul V. Janis, for appellant. Eugene C. Slevin, for respondents.

GOODE, J.

Defendant Dorcas M. Hampton owns the east 35 feet of lot 5, block 2994, of the city of St. Louis, fronting 35 feet on the north line of Maple avenue, having acquired the property by deed dated October 6, 1908, from Nettie Lippe. The property has on it a two-story dwelling house with a basement, and is No. 5221 Maple avenue. The plaintiff's own lots on which, in the same vicinity and on the same thoroughfare, stand their homes. The lot of defendant, Hampton, was formerly owned by E. G. Butler and others as tenants in common, and was by them conveyed on June 8, 1896, to Edward J. Kirby, by deeds filed of record and containing the following covenants: "This conveyance is made by the said parties of the first part and accepted by the said party of the second part, subject to the following conditions, viz.: (1) No building or fence made of lumber shall be erected within twenty feet of the north line of said Maple avenue. (2) No building shall be erected on said land which will cost less than $4,000.00, nor shall there be erected more than one building on said lot. (3) No building shall be erected on said land for business purposes or of the character known as flats, or tenement houses. (4) No store, saloon or livery stable shall be maintained or conducted on said land. (5) The foregoing conditions to remain in force for twenty-five years and from and after the 1st day of March, 1892."

The conveyance under which plaintiffs hold title contains the same covenants recited from defendant Hampton's deed. Shortly after she acquired her house and lot, she made a contract with defendant Vornholt, who is a builder, to make certain changes in the house so as to adapt it for the occupancy of two families, one to reside on the first, and the other on the second, floor. The house is in the style known as "Queen Anne," has a single entrance in front, a reception hall and open stairway ascending to the second floor, a stairway leading from a rear hall to the second floor; at the rear of the house are two porches, one at the first, and one at the second, floor. Defendant, who has no family, intended to arrange the building so she could let the second story to a married couple without children, and the changes she contracted for, and which were in progress when the present action was instituted, were the installation of a bath and toilet on the first floor, putting an additional door bell at the front entrance to communicate with the second floor, placing a separate electric meter on the second floor, and a sink and boiler in the rear room of that floor, enlarging the two rear porches, connecting them with a stairway extending from the second-story porch to...