Hays v. St. Paul M.E. Church

• Citation: 63 N.E. 1040,196 Ill. 633
• Parties: HAYS v. ST. PAUL M. E. CHURCH et al.
• Decision Date: 16 April 1902
• Court: Supreme Court of Illinois

196 Ill. 633

63 N.E. 1040

HAYS

v.ST. PAUL M. E. CHURCH et al.¹

Supreme Court of Illinois.

April 16, 1902.

Appeal from superior court, Cook county; Jesse Holdom, Judge.

Injunction by Nellie King Hays against the St. Paul Methodist Episcopal Church and others. Decree dismissing the bill, and complainant appeals. Affirmed.Flower, Vroman & Musgrave, for appellant.

Altgeld, Darrow & Thompson, for appellees.

CARTWRIGHT, J.

On April 1, 1893, John A. King conveyed to the First Methodist Episcopal Church of Chicago vacant lots at the corner of Harrison street and Ashland boulevard, in the city of Chicago, having a frontage of 80 feet on Ashland boulevard. The deed contained the followingprovision: ‘Provided, however, and this conveyance is made strictly subject to the condition, that no building or structure shall be built or erected on the land herein described and conveyed furcher east, or nearer Ashland avenue, than is the house or building immediatley south of said property.’ The deed was recorded September 11, 1893, and on that day the First Methodist Episcopal church conveyed the premises to the Marshfield Avenue Methodist Episcopal Church in consideration of $32,500, without any building restriction, but upon the condition that they were to be used for church purposes of the Methodist Episcopal Church, and not to be sold or incumbered without the consent of the trustees of the First Methodist Episcopal Church. The Marshfield Methodist Episcopal Church is now the St. Paul Methodist Episcopal Church, the appellee. When the conveyance was made by John A. King, the appellant, Nellie King Hays, was the owner of the lot and house immediately south, mentioned in the deed, and continues to own the same. In the spring of 1901 the appellee proceeded to erect a church building on its premises. Appellant had then resided in California three years for the benefit of her health, and her house had been occupied by tenants, but she had entertained an intention of returning to it. As the church was planned, the front will of the main building was to be 9 1/2 feet back of the front line of appellant's house, but in front of that there was to be a lobby, with halls 19 feet high, the front wall of which would extend at the ground level 5 1/2 inches nearer the street than the front wall of appellant's house, and at the height of 7 feet it would extend 2 1/2 inches nearer the street than that wall. There is a bay in the front of appellant's house, and there were to be two bays in the front of appellee's church, which would extend 3 feet and 2 1/2 inches nearer the street than the bay of appellant's house. The bays in the church building were to be 24 feet high. Appellant filed her bill in the superior court of Cook county, claiming the right to enforce the restriction contained in the deed of John A. King, as being for the benefit of her house and lot, and asked the court to enjoin the appellee from constructing or erecting on its premises any building or structure further east or nearer Ashland boulevard than her house. On a hearing the bill was dismissed for want of equity.

It is not denied that the purchase from John A. King, and the acceptance of the conveyance subject to the provision contained in it, created a valid personal obligation to him. An owner has a right to sell and convey his property upon such terms and conditions as he may see proper, and if the terms are accepted by the grantee, and are not objectionable in law, they will be enforced at the suit of the one in whom the right is vested. Frye v. Partridge, 82 Ill. 267. If a subsequent owner has taken title with notice, either actual or constructive, of a binding agreement between his grantor and the original owner establishing a building restriction, he will be bound to abide by it, and equity will enforce it. In this case there is no dispute that the defendant had notice of the building restriction from the recorded conveyance to the First Methodist Episcopal Church, and if it was imposed in favor of complainant's house and lot, and for the benefit of the same, complainant would have a right to enforce it. The question is whether, by the agreement between King and his grantee, defendant's lot was burdened with the restriction for the benefit of the complainant's lot, so that she can enforce the agreement. The restriction was imposed by John A. King, and the agreement was with him. Complainant was a stranger to that transaction, and there was no covenant or agreement between her and the defendant or its grantor. Her right to enforce the agreement must depend upon her making it appear that it was entered into for the benefit of her lot. In making his conveyance John A. King has a legal right to impose the condition from any motive, and it is immaterial what the motive was, and he could impose it in favor of property which he did not own, and which belonged to complainant, if he saw fit to do so. When he executed his deed he did not own any other property in the block or in that vicinity. He did not own the lot or house south of the premises which he conveyed, and had no interest in either. He had once owned the premises, and had conveyed them by warranty deed December 1, 1889, to the complainant, who is his daughter, and, as a matter of fact, the conveyance was a gift to her. There was no agreement outside of the deed, either between King and complainant or between either of them and the grantee. To establish complainant's right she must show the intention of the restriction to have been to benefit her lot, and this intention must arise out of the language of the deed, construed in the light of the surrounding circumstances. The intention is to be ascertained as in other cases,-not be learning some secret or unexpressed intention in the mind of King, but from the language of the deed itself, considered in connection with the...