McLaughlin v. Neiger, 29415

• Decision Date: 17 January 1956
• Docket Number: No. 29415,29415
• Parties: Constance McLAUGHLIN, Individually and as Agent on Behalf of all of the Residents of Claverach Park, (Plaintiff) Appellant, v. Sally NEIGER, John Morfit and Sally Morfit, His Wife; S. B. Westlake, Bronson S. Barrows, and S. C. Tracy, Claverach Park Agents, (Defendants) Respondents.
• Court: Missouri Court of Appeals

Page 380

286 S.W.2d 380

Constance McLAUGHLIN, Individually and as Agent on Behalf of all of the Residents of Claverach Park (Plaintiff) Appellant, v. Sally NEIGER, John Morfit and Sally Morfit, His Wife; S. B Westlake, Bronson S. Barrows, and S. C. Tracy Claverach Park Agents, (Defendants) Respondents.

No. 29415.

St. Louis Court of Appeals, Missouri.

Jan. 17, 1956.

Motion for Rehearing or to Transfer to Supreme Court Denied

Feb. 17, 1956.

Israel Treiman, and Paul B. Rava, St. Louis, for appellant.

Raymond F. McNally, Jr., St. Louis, for Sally Neiger, John Morfit and Sally Morfit, respondents.

Barksdale & Abbott, Robert D. Abbott, and Victor A. Wallace, St. Louis, for S. B. Westlake, Bronson S. Barrows, and S. C. Tracy, Claverach Park Agents, respondents.

MATTHES, Judge.

In this action for an injunction and other relief plaintiff appeals from the judgment of the trial court dismissing her petition with prejudice and finding against her.

In substance, plaintiff's petition alleged: She has been the owner in fee simple of Lot 1 in Block 1 of Moorlands Park (now known as Claverach Park), St. Louis County, Missouri, fronting on Wydown Boulevard, since January 3, 1952. Defendants John Morfit and Sally, his wife, are the owners of a lot in Claverach Park known as 7112 Wydown Boulevard, and defendant Neiger occupies those premises. One David Hooton was the owner of the tract of land now known as Claverach Park, and caused the land to be subdivided and platted into blocks and lots as shown by plat recorded in the St. Louis County Recorder's office. On June 1, 1921, David Hooton executed an indenture, recorded June 13, 1921, whereby the lots in the subdivision were restricted to residential purposes, the restrictions expressly forbidding the operation of any business on the tract making up the subdivision. On February 23, 1934, and for the purpose of carrying out the objects of the indenture of June 1, 1921, an instrument providing for 'Restrictions, Conditions, Covenants, Reservations, Rules and Regulations for Administration and Government of Claverach Park by the Agents thereof was made and entered into by the owners of the land known as Claverach Park'.

The petition sets out verbatim four of the articles in the indenture of February 23, 1934. Article I provides, inter alia, that the restrictions, conditions, and covenants shall constitute a binding contract between all the lot owners of Claverach Park, 'their heirs, executors, administrators, assignees, grantees, alienees, devisees, and the occupants, lessees, tenants, and all persons controlling or claiming any interest of any character in said lots * * * and shall constitute covenants attached to and running with the land, for the purpose of binding all the aforesaid while their respective interests continue, * * *'.

Article X (6) provides in part: 'No building shall be designated to be, nor shall it ever be used or occupied for any business purpose, or for any purpose except that of a private residence intended to be, and which shall be, occupied by one family only. No business shall be carried on, * * *.'

Additional averments in the petition are that the uniform restrictions were designed to preserve the properties permanently as a first-class neighborhood and to prevent the use of the land for any business purpose; that the defendant Neiger, with consent of defendants Morfits, maintains and operates on the premises at 7112 Wydown Boulevard, a nursery school for profit which is a business and in direct violation of the restrictions forbidding any business on the premises; that upon acquiring knowledge of the operation of said school in August, 1952, plaintiff demanded that the defendants S. B. Westlake, Bronson S. Barrows, and S. C. Tracy, as agents of Claverach Park, bring an end to the violation of the restrictions, but the agents not only failed to do so, but notified plaintiff they did not intend to enforce the restrictions.

Defendants Neiger and Morfits (hereinafter called defendants) attacked plaintiff's right to maintain the action by their joint motion to dismiss upon the ground that plaintiff's cause of action was barred by the 5-year statute of limitations, Sec. 516.120 (all statutory references are to RSMo 1949, V.A.M.S.), and upon the additional ground that plaintiff does not have legal capacity to bring the action. The remaining defendants, Westlake, Barrows, and Tracy (hereinafter for convenience called agents) filed their separate joint motion to dismiss upon the sole ground of legal incapacity on the part of plaintiff to sue and maintain the action. In time both motions to dismiss were sustained, and, as stated, the court ordered plaintiff's petition dismissed with prejudice and rendered judgment against her.

Plaintiff appealed to the Supreme Court. Upon motion of all of the defendants that court, without opinion, ordered the cause transferred to this court.

In support of the defendants' motion to dismiss on the ground that plaintiff's cause of action is barred by the statute of limitations, two affidavits were filed from which it appears that defendant Neiger has been operating a nursery school in a fenced-off part of the rear yard of the property at 7112 Wydown Boulevard continuously and without interruption since September, 1946. Plaintiff countered with an affidavit by her executed in which the stated the nursery school 'has not been and is not operated openly, continuously and without interruption, * * *'. For the purpose of this opinion only we consider the school as having been in operation since September, 1946.

At the outset and for her first point plaintiff contends that the defense of the statute of limitations cannot be raised by motion to dismiss for the reason that the petition fails to disclose facts pertinent to this issue, i. e., the petition does not show upon its face the date of the commencement of the operation of the business claimed to be prohibited by the restrictions. Inasmuch as we have concluded that the 5-year statute of limitations relied upon by defendants is not controlling we deem it unnecessary to dispose of the point raised by plaintiff involving the procedural question. However, those interested in the right to raise such a matter by motion may consult Hamilton v. Linn, 355 Mo. 1178, 200 S.W.2d 69; Metcalf v. American Surety Co. of New York, 360 Mo. 1043, 232 S.W.2d 526; Meisel v. Mueller, Mo.App., 261 S.W.2d 526; Halloran v. Hackmann, Mo.Sup., 160 S.W.2d 769, loc. cit. 771, and Sec. 509.290.

The basic and meritorious question we must consider is whether the facts bring plaintiff's action within Section 516.120, the 5-year statute of limitations, or Sections 516.010 or 516.110, both being 10-year statutes of limitations.

By recognized authority including our courts a restrictive covenant of the character of the one with which we are concerned runs with the land. Thompson on Real Property (Perm.Ed.), Vol. 7, Sec. 3620, pp. 107 and 108, deals with the question in this language: 'A restrictive covenant runs with the land if created for the benefit of the land conveyed, or that of which the grantor remains the owner, and intended to be annexed to such land. In such case it would become an easement appurtenant thereto, and would pass to a grantee. * * * In order that a restrictive covenant may run with the land, its performance or nonperformance must affect the nature, quality, or value of the property demised independent of collateral circumstances, or it must affect the mode of enjoyment, and there must be privity between the contracting parties. All covenants which relate to land and are for its benefit run with it, and may be enforced by each successive assignee into whose hands it may run by conveyance or assignment.' See, also, Cook v. Tide Water Associated Oil Co., Mo.App., 281 S.W.2d 415, loc. cit. 418, wherein numerous cases and authorities are cited which unequivocally hold that a restrictive covenant similar to the one presented by the petition in this case runs with the land. While a restrictive covenant running with the land does so without a declaration to that effect, 26 C.J.S., Deeds, Sec. 167, p. 544, note 53, the instant agreement of the parties expressly provides the provisions are binding upon the heirs, etc., of all lot owners, 'and shall constitute covenants attached to and running with the land'.

A covenant imposing valid restrictions upon lots within a given area creates an easement appurtenant thereto, and the owner of each lot has an easement in each and all of the lots affected by the restrictions. State ex rel. Britton v. Mulloy, 332 Mo. 1107, 61 S.W.2d 741, loc. cit. 743; Matthews v. First Christian Church of St. Louis, 355 Mo. 627, 197 S.W.2d 617; Peters v. Buckner, 288 Mo. 618, 232 S.W. 1024, loc. cit. 1027, 17 A.L.R. 543; King v. St. Louis Union Trust Co., 226 Mo. 351, 126 S.W. 415; Thompson on Real Property (Perm.Ed.), Vol. 7, Sec. 3631, p. 121. And it is a property right....