Hisey v. Eastminster Presbyterian Church

• Decision Date: 06 April 1908
• Citation: 109 S.W. 60,130 Mo.App. 566
• Parties: ALLEN H. HISEY, Respondent, v. EASTMINSTER PRESBYTERIAN CHURCH et al., Appellants
• Court: Kansas Court of Appeals

109 S.W. 60

130 Mo.App. 566

ALLEN H. HISEY, Respondent, v. EASTMINSTER PRESBYTERIAN CHURCH et al., Appellants

Court of Appeals of Missouri, Kansas City

April 6, 1908

Appeal from Jackson Circuit Court.--Hon. Henry L. McCune, Judge.

AFFIRMED.

Judgment affirmed.

Warner Dean, McLeod & Timmonds for appellant.

(1) Under the pleadings and evidence of this case, the court committed error in rendering judgment for the plaintiff. (2) The particular covenant pleaded and relied upon by the plaintiff, did not run with, or bind the defendants' land, or operate in any way to restrict them in their use of it. 5 Pomeroy on Equity Jurisprudence, sec. 272, note 10; Hall v. Wesster, 7 Mo.App. 56; Railroad v Railroad, 41 Minn. 461, 43 N.W. 473; 2 Kerr on Real Property, sec. 1218; 3 Pomeroy on Equity Jurisprudence, sec 295, note c; Railroad v. Railroad, 135 U.S. 576; Coughlin v. Barker, 46 Mo.App. 54, 64. (3) Any rights which the plaintiff might have had as against the defendants, under the particular covenant pleaded, have been completely cut off under the facts of this case. (4) The facts of this case are not such as to entitle the plaintiff to injunctive relief in any event. Schuster v. Myers, 148 Mo. 422; R. S. 1899, sec. 3649; High on Injunctions, sec. 28; Yantis v. Burdett, 3 Mo. 457; Butts v. Fox, 107 Mo.App. 370; High on Injunction, sec. 9; 16 Am. and Eng. Enc. of Law, 351; Kerr on Injunction, 531-533; Tanner v. Wallbrunn, 77 Mo.App. 262; 16 Am. and Eng. Enc. of Law, 353, 360, 363; Dickhaus v. Olderheide, 22 Mo.App. 76; Barnard v. Gibson, 7 How. (U.S.) 656; Trustees of Columbia College v. Thacher, 87 N.Y. 318; Greenhood on Public Policy, pp. 1, 2. Such contracts are void as being against public policy. Tarley v. Edwards, 18 Mo.App. 676; Com. v. Kneeland, 20 Pick. (Mass.) 206; Lindenmuller v. The People, 33 Barb. (N.Y.) 548.

Brown, Harding & Brown for respondent.

(1) The restrictions contained in the contract of August 11th, and the deed and the contemporaneous contract imposed a servitude upon the remaining lots in Abington Park for the benefit of respondent's lot, and he is entitled to injunctive relief to prevent a violation of his rights. Coughlin v. Barker, 46 Mo.App. 79; Hall v. Wesster, 7 Mo.App. 56; St. Louis v. Kennett, 101 Mo.App. 370; Sharp v. Cheathem, 88 Mo. 503; Keating v. Korfhage, 88 Mo. 524; Compton v. Tower, 158 Mo. 282; 5 Pomeroy's Equity Jurisprudence, sec. 272, notes 9, 10, also cases cited; 5 Pomeroy's Equity Jurisprudence, sec. 278, notes 24, 25; 5 Pomeroy's Equity Jurisprudence, sec. 281, note 33; Stevens v. Realty Co., 173 Mo. 520; Tulk v. Moxhay, 15 Eng. Ruling Cases, 254. (2) Appellants had both actual and constructive notice of the servitude, and it is immaterial whether the covenant did or did not run with the land. Coughlin v. Barker, 46 Mo.App. 54; Pomeroy on Equity Jurisprudence, sec. 272 and notes; sec. 278 and notes and sec. 1295; cases cited under point 1. (3) The reservation in the deed relied upon by respondent should be read in the light of all of the terms of the deed, and in the light of the contemporaneous contract in order to arrive at the real intention of the parties. If it cannot be made to harmonize with other portions of the deed and the contract, then it must be read out of the deed entirely. Bent v. Alexander, 15 Mo.App. 190; Davis v. Hendrix, 59 Mo.App. 449; Belch v. Miller, 32 Mo.App. 396; Parsons on Contract (5 Ed.), 494; Johnson v. Wood, 84 Mo. 509; Waples v. Jones, 62 Mo. 440; Brownlee v. Arnold, 60 Mo. 79; Noel v. Gaines, 68 Mo. 649. (4) The injury to respondent's home, while immeasurable, was considerable. But the extent of the injury is immaterial. He had a right to enforce the contract, even if moved by caprice. "A party may not make a solemn engagement, and then disregard it on the plea that no harm will result to the other party." St. Louis v. Kennett, 101 Mo.App. 389; Hall v. Wesster, 7 Mo.App. 61; Pomeroy on Equity Jurisprudence, sec. 281, note 33; Trustees of Columbia College v. Thacher, 87 N.Y. 318; High on Injunctions, sec. 9; Ives v. Edison, 50 L. R. A. 134; Johnston v. Hyde, 32 N.J.Eq. 446; Merritt v. Parker, 1 N. J. L. 400; Tillotson v. Smith, 38 N.H. 90; Hulme v. Shreve, 3 Gr. Ch. 116; Dewey v. Bellows, 9 N.H. 282; Dickason v. Canal, 15 Beav. 260; Parsons on Contracts, 213. (5) Appellants had notice of the restrictions. In the face of vigorous protests they expended a small amount of money in making an excavation for the church. They went into it with eyes open and in the face of respondent's contention. They will not be permitted to take advantage of their own wrong and be heard to say that inasmuch as they have gone to an expense, the court should take that fact into consideration.

OPINION

BROADDUS, P. J.

--This is an injunction suit to restrain the defendant from erecting a church building on a certain lot in Kansas City in what is known as the Abington Addition. The facts are that the Abington Land Company opened up an addition with the view of having it built up with residences. The plaintiff bought a lot in the addition and erected a residence thereon, upon the inducement that the land in the addition would be used for that purpose only. This contract of purchase was duly recorded on August 11, 1903. On the 28th day of that month the company made him a deed to the lot, which has the following recitations: "It is mutually agreed by and between the parties hereto as and for a part of the consideration heretofore mentioned, that the premises hereinbefore described are conveyed subject to the following covenants, conditions and restrictions which shall be binding upon the parties hereto, their heirs, successors and assigns, and which shall remain in force and effect for the full period of twenty years from the date of this deed to-wit:

"1st. Said premises shall be used by the party of the second part, or by his heirs or assigns, including tenants, for residence purposes only.

"2nd. No building shall be erected upon said lot with its front wall less than thirty feet from the nearest line of the street upon which said lots fronts.

"3rd. No residence with appurtenances thereto shall be erected upon said lot costing less than three thousand dollars.

"4th. Similar covenants and conditions and restrictions shall be contained in all conveyances of property in Abington Park now owned by the party of the first part. And in case the party of the first part improves or causes to be improved, any property in said Abington Park, such improvements and uses thereof shall be under and subject to similar covenants and conditions, it being understood that the covenants and restrictions referred to in this paragraph may be varied by said party of the first part as occasion may require.

"8th. Each and all of the covenants aforesaid shall, for said twenty years, run with and bind the lot or lots in said Abington Park, in respect of which the same are made, and kept by each and all persons and parties owning, occupying or using the same during that time."

Subsequently defendant bought a lot in said addition through its trustees who were notified of all the conditions in plaintiff's deed with full notice of the avowed purpose originally of the said land company that lots in the addition should be used exclusively for the purpose of residences and no other, and were proceeding to erect a church upon the same, in such a manner as to occupy almost the entire lot the front of which would be near the line of the sidewalk, when the restraining order was issued herein. The defendants' deed contains none of the conditions or restrictions mentioned in that of the plaintiff. The court rendered judgment for plaintiff restraining defendants from erecting its church on said lot from which they appealed.

We have instances where it is held that collateral covenants do not run with the land. [Des Moines and Fort Dodge Railroad Co. v. Wabash Railroad Co., 135 U.S. 576, 34 L.Ed. 243, 10 S.Ct. 753.] That was: "Where a contract for a traffic arrangement made between two railroad companies, declares that the contract and any damages for the breach of the same shall be a continuing lien upon the roads of the contracting parties, this does not constitute a lien running with the land, when by due course of law it has passed into other hands, although it may be valid contract personally enforceable between the parties." The contract in that instance had reference to traffic between the two companies, and not in reference to realty, the covenants providing for a lien on the roads for the damages arising out of a breach of the contract was therefore what is called collateral covenants. "All covenants relating to a subject matter not in esse such as for the erection of buildings upon the premises demised, are personal covenants and do not run with the land so as to bind the assignees unless they are expressly named therein. [2 Kerr on Real Property, sec. 1218.] The foregoing authorities state the rule and we do not deem it necessary to cite others.

But it is not a question of law that presents the difficulty in this case but its application. We are not impressed with the conviction that the covenants of warranty in this instance are collateral. The covenants in plaintiff's deed by their very terms are made mutual as to him and to his grantor, the land company. One of these covenants is that the premises conveyed shall be used by him for residence purpose only; and the land company covenants also that similar covenants, shall be inserted in all conveyances of property in said addition owned by the company. "A covenant runs with the land when...