Hodson v. Walker

• Decision Date: 19 May 1913
• Citation: Hodson v. Walker, 157 S.W. 104, 170 Mo. App. 632 (Kan. App. 1913)
• Parties: W. S. HODSON, Appellant, v. H. L. WALKER and TESS WOODS, Respondents
• Court: Kansas Court of Appeals

157 S.W. 104

170 Mo.App. 632

W. S. HODSON, Appellant, v. H. L. WALKER and TESS WOODS, Respondents

Court of Appeals of Missouri, Kansas City

May 19, 1913

Appeal from Buchanan Circuit Court.--Hon. Wm. D. Rusk, Judge.

Judgment affirmed.

A Bowers, Charles E. Strop and Eugene Silverman for appellant.

(1) Houses of prostitution are public nuisances which the State or any private citizen suffering special injury may suppress by injunction.The authorities supporting this proposition of law are so numerous that we cite only a few of the best known cases.Seifert v. Dillon,83 Neb. 322, 17Am. & Eng. Ann. Cas. 1126, 19 L. R. A. (N. S.) 1018;Blagen v Smith,34 Ore. 394, 44 L. R. A. 522;Ingersoll v Rosseau,35 Wash. 92, 1 Am. & Eng. Ann. Cas. 35;Tedescki v. Berger,43 So. 960, 11 L. R. A. (N. S.) 1060;Weakley v. Page,102 Tenn. 178, 46 L. R. A. 552.(2) And the fact that such premises were so used prior to appellant's purchase, if such is the fact, is immaterial.(3) Even as to landlord and tenant it is well settled that where a lessor has no adequate remedy at law an injunction will lie to restrain the lessee from an objectionable use of the premises.24 Cyc. 1064, and cases cited.(4) And a right of re-entry is not an adequate remedy.Godfrey v. Black,39 Kan. 193.(5)Appellant suffers special injury by reason of the depreciation in value of his property, the indecencies he is compelled to come in contact with, and the scorn and contempt to which he is subjected.He has no adequate remedy at law.An action for recovery of possession is inadequate because the contract of sale would remain as a cloud upon appellant's title."It is not enough that there is a remedy at law.It must be plain and adequate or in other words as practical and efficient to the ends of justice and its prompt administration as the remedy in equity."Watson v. Sutherland,5 Wall. 74, 18 L.Ed. 580, citingBoyce v. Grundy,3 Pet. 210;North v. Peters,138 U.S. 271, 34 L.Ed. 936;Summer v. Crawford,91 Tex. 129;Dycus v. Tradeis Co., 113 S.W. 329.

E. M. Swartz and G. L. Zwick for respondent.

(1) If the petition means what it says, that respondents are in possession under an illegal contract, as he pleads, then we submit that appellant is without standing in either a court of law or equity.The "contract" of sale could not be enforced.Sprague v. Rooney,104 Mo. 349, 16 S.W. 505.Neither could rent be collected.Ashbrook v. Dale,27 Mo.App. 649, 19 L. N. S. 663, note.Surely if appellant has not standing under his admission in his pleading in a court of law because of illegality, equity cannot clear his skirts.(2) The petition does not state a cause of action, and does not state any traversable facts showing appellant entitled to relief in equity.State ex rel. v. Wood,155 Mo. 425-56, ___ S.W. 474;Verdin v. St. Louis,131 Mo. 105, 33 S.W. 498;Humphreys v. Milling Company,98 Mo. 542;Woolfolk v. Kemper,31 Mo.App. 421;Spitz v. Kerfoot,42 Mo.App. 77.At least, equity will not interfere in doubtful cases until there has been a judgment at law.Harrelson v. Railroad,151 Mo. 482, 52 S.W. 368.To comply with the statute, Sec. 2534, R. S. 1909, appellant must allege that he has not an adequate remedy at law in an action for damages.This he has failed to do.Gordon v. Mansfield,84 Mo.App. 367;Bank v. Kercheval,65 Mo. 682;Towne v. Bowers,81 Mo. 491;Harris v. Township Board,22 Mo.App. 462;Bailey v. Wade,24 Mo.App. 186;Brewing Co. v. Water Works Co.,34 Mo.App. 49;School District v. Young, 152 Mo.App. 304, 133 S.W. 143.

OPINION

TRIMBLE, J.

--Appellant filed a bill in equity wherein he alleged that he is the owner of a certain lot and building thereon, and the furnishings therein located, in the city of St. Joseph, having purchased the same from one Mary W. Lutz; that his ownership is subject to a contract in writing made by said Lutz with Tess Woods prior to the deeding of said property to appellant, in which contract said Lutz undertook to rent said property to Tess Woods and gave her an option to buy same, and agreed to convey same to her when the said Tess Woods had paid the purchase price of $ 26,800 in payments as follows: $ 10,000 in five years with six per cent interest per annum payable monthly beginning May 21, 1911, and $ 16,800 in weekly installments of $ 65, each beginning April 22, 1911, and ending June 24, 1911, and $ 75 per week thereafter until said $ 16,800 is fully paid; that in said contract it is further provided that said Tess Woods shall keep the property in repair, pay all the taxes, and faithfully perform all stipulations therein contained, and make all weekly payments therein required and a failure to do so shall cause a forfeiture of the premises, give a right of re-entry to the owner, and the weekly payments made shall be retained as liquidated damages for failure to comply winth the contract, and upon such failure, possession of said premises shall be delivered to the owner.The petition alleges that the contract referred to was in reality a lease for a bawdy house, so drawn in order to avoid the consequences of making such a lease; that the premises are now used for a bawdy house, in which many lewd women live and engage in whoredom, the sale of intoxicating liquor, loud, indecent and offensive broils and the practice of abhorrent and unmentionable vices; that the maintenance of such brothel is a public nuisance and a disgrace and dishonor to the city; that by reason of all these practices in the use of plaintiff's property, plaintiff will suffer irreparable damage, his property rendered worthless and undesirable, and that such use will continue unless defendants are restrained; and that plaintiff has no legal remedy.Wherefore he prays that said nuisance be abated; that defendants be enjoined from using said premises as a bawdy house and from harboring prostitutes therein.

A demurrer to the petition was filed which the trial court sustained, and plaintiff, refusing to plead further, stood upon the petition.Whereupon judgment was rendered against him and he now appeals.

The question presented for our consideration is not the desirability or the feasibility of efforts to lessen or prohibit the social evil, but to determine the sufficiency of the petition as the foundation of a suit in equity.

There is no allegation in the petition that the defendants are insolvent or unable to make the payments required of them by the terms of the contract.Indeed, the inference is that they are paying these installments promptly, or else the appellant would exercise the right of re-entry provided in the contract.From the allegations of the petition it would seem that the property has increased in value since the contract was executed rather than decreased.There is no allegation in the petition that plaintiff is or was ignorant of the purpose of the contract; or that the property is being used for a purpose different from that contemplated by the parties when it was made.On the contrary, the...