King v. St. Louis Union Trust Co.

• Decision Date: 15 March 1910
• Citation: 126 S.W. 415,226 Mo. 351
• Parties: KING v. ST. LOUIS UNION TRUST CO.
• Court: Missouri Supreme Court

126 S.W. 415

226 Mo. 351

KING v. ST. LOUIS UNION TRUST CO.

Supreme Court of Missouri, Division No. 2.

March 15, 1910.

1. VENDOR AND PURCHASER (§ 231) — BONA FIDE PURCHASER — NOTICE OF RESTRICTIONS — RECORDED DEEDS OF OTHER LOTS.

Under Rev. St. 1899, § 923 (Ann. St. 1906, p. 845), providing that every instrument whereby any real estate may be affected, in law or equity, shall be recorded, and section 924 (page 846), providing that every such instrument shall, from the time of filing it for record, import notice to all persons of its contents, and all subsequent purchasers shall be deemed, in law and equity, to purchase with notice, where R., owning land, which it had platted, deeds one of the lots subject to certain building restrictions, recited to have been imposed by R. on each lot for the benefit of every other lot, and with covenant that R. will not dispose of any of the lots except subject to such restriction, the record of such deed is constructive notice to a subsequent purchaser from R. of one of the lots of the restriction thereon, constituting an equitable easement.

2. VENDOR AND PURCHASER (§ 230) — BONA FIDE PURCHASER — NOTICE OF RESTRICTIONS — RECITAL IN DEED.

The recital in a deed of certain of the lots platted by the grantor, "All of said above-described real estate being subject to all restrictions now of record against same," if not actual notice, puts the grantee on inquiry for the record of the instrument placing the said restrictions on the lots.

3. INJUNCTION (§ 128) — SUFFICIENCY OF EVIDENCE.

Defendant, in an action to enjoin it from taking any further steps in violation of building restrictions to which its lots were subject in favor of plaintiff's lot, having by its answer denied that there were any such restrictions on the land, and nowhere disclaimed the intention, charged against it, of selling the lots without those restrictions, and it being shown that defendant's agent told plaintiff he meant to sell the property for any purpose he could, the evidence of defendant's intention was sufficient to authorize an injunction, in view of the presumption against defendant in failing to bring forward the facts peculiarly within its knowledge.

4. APPEAL AND ERROR (§ 173) — OBJECTIONS IN LOWER COURT — NECESSITY.

Defendant, having defended the case and acted all the way through as if the representations of a certain person were its own, cannot now, after judgment, deny his authority to make the representations.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Suit by Annie F. King against the St. Louis Union Trust Company. Decree for plaintiff. Defendant appeals. Affirmed.

E. W. Banister, for appellant. Kinealy & Kinealy, for respondent.

BURGESS, J.

This is a suit to enjoin the defendant company from erecting, or procuring others to erect, buildings of a certain character on certain building lots owned by it in the city of St. Louis.

The petition alleges, in substance, that the Rex Realty Company, a corporation, had laid out a subdivision in block No. 3,892, in the city of St. Louis, known as "Rex subdivision," which was more than ordinarily suitable for residences for wealthy persons, and in order to insure the use of same for high-class residence purposes, and that no business or apartment houses or flats might be built thereon, imposed incumbrances and restrictions on each and every lot of said subdivision for the benefit of every other lot therein, and of the future owner of such lot, which restrictions and incumbrances, in addition to others of a minor character, were as follows: That there should be a 50-foot building line south of and parallel with the south line of Pine street; that but one building should be erected on each lot, and such building should be used exclusively for private residence; that no building should be arranged, used, or occupied as flats, nor should said lots, or any part thereof, ever be used or occupied for trade or business of any kind; that no building erected on any of such lots should cost less than $10,000. Plaintiff further averred in her petition that said incumbrances and restrictions greatly enhanced the marked value of the lots; that Martha Sweringen, plaintiff's grantor, purchased lots B and C, and the eastern five feet of lot D, in said subdivision; that the Rex Realty Company's conveyance to her recites that said company had imposed said restrictions and incumbrances against said land for the benefit of every other lot therein, and for the benefit of said Martha Sweringen, her heirs and assigns, including the lots in said subdivision afterwards sold to defendant; that afterwards said Martha Sweringen built on a part of the land purchased by her, and afterwards sold all of lot B and part of lot C to plaintiff; that afterwards the Rex Realty Company sold to defendant lots A, D, E, 15 feet of lot F, and lots H and J, of said Rex subdivision; that defendant, then and there at the time, had full knowledge of said restrictions and incumbrances, and that they bound the lots so purchased by defendant; there at the time, had full knowledge of said lots, so acquired by it, to be divided into smaller portions, and is offering these divisions of lots for sale, with permission to erect thereon apartment houses and flats, and has entered into contracts and agreements for the erection on said divisions of said lots buildings for business purposes, apartment houses, and flats, and threatens to erect immediately apartment houses or flats on all such portions of said lots, and is, and by its agents is, urging and seeking to have others erect flats and apartment houses on said lots or portions of said lots — all in violation and annulment of the restrictions and incumbrances aforesaid, and all of which will injure the value of said lots and part of lot purchased by plaintiff, and render them undesirable for residence purposes. Plaintiff prays that defendant be enjoined from taking any further steps in violation of said restrictions and incumbrances, from erecting, or procuring or urging others to erect, any building on the lots so purchased by it, for business purposes, or for use as apartment houses or flats, or for any other purpose than as a dwelling such as is described in said restrictions and incumbrances.

Defendant filed its amended answer, admitting that it was a corporation, and denying every other allegation in the petition. Further answering, defendant states: "That on or about the 4th day of May, 1905, it purchased and acquired from the Rex Realty Company, in consideration of a large and valuable consideration paid by defendant to said Rex Realty Company, to wit, the sum of $52,500, all of lot A, the western 70 feet of lot D, all of lot E, the eastern 15 feet of lot F, all of lot H, and the western 73 feet of lot J, of said Rex subdivision referred to in plaintiff's petition herein. But defendant says that neither at the time it so purchased said real estate, nor at any time prior thereto, did it have any notice or knowledge, either actual or constructive, that any attempt had been made to place any of the pretended restrictions or incumbrances mentioned in plaintiff's petition upon or against the same, or any part thereof; that it paid full value for said lots; and that, if any attempt had theretofore been made by any one to restrict or incumber said real estate in the manner stated in plaintiff's petition, this defendant says such attempt was and is without force or effect so far as this defendant is concerned, because neither at the time defendant purchased said lots, nor any time prior thereto, did it have any notice or knowledge, actual or constructive, that any such attempt had been made so to restrict or incumber said land or any part thereof. And defendant denies that any such restrictions or incumbrances do or ever did in fact exist against said real estate or any part thereof."

For reply, plaintiff denied each and every allegation of new matter set forth in the answer.

The evidence shows that the Rex Realty Company, a corporation of the city of St. Louis, owned the north half of city block 3,892, in said city, and subdivided it into lots A to M, inclusive, a certified copy of the plat of which property, known as "Rex subdivision," was introduced in evidence, and showed a building line 50 feet south of the curb line on the south side of West Pine boulevard. Attached to said plat was the following writing: "The undersigned proprietors of the north half of city block No. 3,892 have caused said tract of land to be surveyed and subdivided in the manner as shown on the above plat, and which said subdivision is to be known as `Rex subdivision' of the north half of block 3,892. A building line for each of said lots is hereby established 50 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 8 feet beyond the building line. In witness whereof, the Rex Realty Company has caused these presents to be signed by its president, countersigned by its secretary, and its corporate seal to be attached, this the 25th day of April, 1895." The said writing was signed by the president and secretary of said Rex Realty Company, and its corporate seal attached thereto. The plat, which was duly sworn to and acknowledged, and recorded on the 3d day of October, 1895, contains no other restrictions or limitations on the use of said lots than those mentioned.

The plaintiff purchased one of these lots from her mother, Mrs. Martha Sweringen, on March 12, 1896, receiving her warranty deed. Mrs. Sweringen had purchased the same lot from the Rex Realty Company, which executed to her its deed, dated October 17, 1895, and recorded in the recorder's office of the city of St. Louis on October 21, 1895, which deed contained the following clauses:

"That whereas, the party of the first part, being...