Milligan v. Balson

Decision Date06 May 1924
Citation264 S.W. 73,214 Mo.App. 627
PartiesBOB MILLIGAN, Respondent, v. LEWIS E. BALSON, Appellant.
CourtMissouri Court of Appeals

Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Ferriss, Judge.

AFFIRMED.

Judgment affirmed.

Vincent D. Gallo and Atkinson, Rombauer & Hill for appellant.

(1) This being a suit in equity, this court will, under the well-established procedure in equity cases, try the case de novo. Gibson v. Shull, 251 Mo. 485; Conrad v Boogher, 201 Mo.App. 661. (2) (a) The covenants and restrictions relied upon by plaintiff to establish a twenty-foot building line being in derogation of the fee conveyed, and not being clearly expressed, but being in language vague, indefinite and uncertain as to the restrictions and as to any property covered by the restrictions, the court should not have extended such restrictions by implication or held that they included anything not plainly prohibited. The intention of the parties must be clearly expressed in the grant. The learned trial court declined to follow this well recognized rule of construction and thereby committed error in this case. Bolin v. Investment Company, 273 Mo. 262; Zinn v. Sidler, 268 Mo. 680; Conrad v. Boogher, 201 Mo.App. 644; Kitchen v. Hawley, 150 Mo.App. 497; Park v. Eaton, 115 Mo.App. 176; Hutchinson v Ulrich, 145 Ill. 336; Hartman v. Wells, 257 Ill. 167; Hammett v. Born, 247 Pa. St. 418; Johnson v. Jones, 244 Pa. St. 386; Hunt v. Held (Ohio St.), 107 N.E. 765, L. R. A. 1915D, 543; Easterbrook v. Hebrew Ladies Orphan Ass'n, 85 Conn. 289; 19 C. J., p. 906, sec. 91; 4 Kent's Com. 131; 1 Wash. R. P. 317. (b) The trial court erred in not holding that the words "clearly expressed," as used by our Supreme and Appellate Courts, as well as by appellate courts of other states, meant that if a reasonable and substantial doubt is raised by the words employed in the covenant containing the restrictions it must be resolved against the grantor. Bolin v. Investment Company, supra; Conrad v. Boogher, supra; Stone v. Pillsbury, 167 Mass. 332, and cases cited; Johnson v. Jones, supra; Grooms v. Morrison, 249 Mo. 544; Linnville v. Greer, 165 Mo. 380. (3) The language used in the deeds from the grantors, Jeanette F. Morton, and the St. Louis Union Trust Company, as trustees, and George O. Carpenter, Jr., to George H. Brueggemann and wife and the deed to the plaintiff and the deed to defendant's predecessor in title, did not create or impose a building line upon the property of defendant or the property of either of the other parties hereinabove named, because the language used in each of the deeds from said grantors is too vague, indefinite and uncertain, and fails to clearly express in writing any restrictions establishing a building line upon defendant's property, or the property of plaintiff, or the property of said Brueggemanns, and the trial court erred by not so holding. Bolin v. Investment Co., 273 Mo. 262; Conrad v. Boogher, 201 Mo.App. 644; Donohoe v. Turner, 204 Mass. 274; And other authorities cited under point 2 of this brief. (4) The language used in the deed from said grantors to said Brueggemanns did not create or impose a building line upon the property of defendant or plaintiff because the said deed wholly fails to contain any description or designation of the lots belonging to both plaintiff and defendant, and because the language used in said deed is too vague, indefinite and uncertain and fails to contain any valid description of any property sought to be restricted with a twenty-foot building line, and the trial court erred in not holding said deed void as to the property of both plaintiff and defendant. The plaintiff has no right to enforce the observance of the restriction in question against defendant, even if such existed. 19 C. J., p. 906, secs. 91, 92; 18 C. J., p. 179, secs. 61, 67; Schroeder v. Turpin, 253 Mo. 258; Sims v. Brown, 252 Mo. 58; Blumenthal v. Blumenthal, 251 Mo. 693; And authorities cited under point 2 of this brief. (5) The petition does not state a cause of action in that it fails to allege any facts to show that plaintiff has any right under the alleged restriction on defendant's lots. Also under the proof the plaintiff cannot recover in this cause. The alleged restriction in the Brueggemann deed as to the lots belonging to plaintiff and defendant being void for its failure to contain any description or designation of the lots belonging to plaintiff and defendant, and fails to contain any valid description of any property sought to be restricted with a twenty-foot building line. Doerr v. Cobbs, 146 Mo.App. 342; Coughlin v. Barker, 46 Mo.App. 60; Meriwether v. Joy, 85 Mo.App. 634; Sharp v. Ropes, 110 Mass. 381; Mulligan v. Jordan, 50 N.J.Eq. 363; Summers v. Beeler, 90 Md. 474; Roberts v. Scull, 58 N.J.Eq. 396; Webber v. Landigan, 215 Mass. 221; Korn v. Campbell, 192 N.Y. 490, 37 L. R. A. (N. S.) 1; Stevenson v. Spivey (Va.), 110 S.E. 367, 21 A. L. R. 1276. (6) The building line restriction in question, if any such existed, has become obsolete by reason of the change in the character of the locality to that of a commercial district and must give way to the necessities and growth of the business and commercial interests of the city. In view of the facts and conditions in general it would be inequitable and oppressive to enforce same. [Koehler v. Rowland, 275 Mo. 587; Moore v. Curry, 176 Mich. 456; Knepp v. Schroeder, 255 Ill. 621; Devlin on Real Estate, sec. 991c; Thompson v. Langan, 172 Mo.App. 83; Messersmith v. Messersmith, 22 Mo. 372; Jackson v. Stevenson, 156 Mass. 496; Scharer v. Pantler, 127 Mo.App. 433; Eversten v. Geitenberg, 186 Ill. 344; Batchelor v. Hinkle, 210 N.Y. 243; Trustees v. Thatcher, 87 N.Y. 311; Schwartz v. Duhne, 118 A.D. 105; Bates v. Logeling, 137 A.D. 578; Russell v. Haysel, 20 Ohio C. C. Rep. 127. (7) The plaintiff was guilty of such laches in standing idly by for more than two months after seeing the foundation walls and footings of the buildings erected by defendant before instituting this suit, and such conduct should preclude him from the relief sought to be obtained. Kellogg v. Moore, 271 Mo. 193; Chilton v. Nickey, 261 Mo. 243.

Edward W. Foristel and O. J. Mudd for respondent.

(1) It is immaterial, under the Missouri rule, where or in what part of a deed the intention of the grantor to impose a restriction on the use of the land granted may be found. If that intention is clear and free from reasonable doubt, it is binding upon the land conveyed, whether impressed in the one or the other of the orderly parts of the deed. Utter v. Sidman, 170 Mo. 284; Heady v. Hollman, 251 Mo. 632; Garrett v. Wiltse, 252 Mo. 699; Welch v. Finley, 281 Mo. 684; Gaw v. Allen, 112 Mo.App. 711; Kitchen v. Hawley, 150 Mo.App. 497; Kenwood Land Co. v. Investment Co., 169 Mo.App. 715. (2) The intention to impose a restriction upon the use of land conveyed in a deed, and especially when it is imposed in conformity to a general scheme or plan, is to be discovered from the deed itself and the "surrounding circumstances" indicative of such intention. Berry on Restrictions on the Use of Real Property, sec. 38; Kenwood v. Invs. Co., 169 Mo.App. 725; Spahr v. Cape, 143 Mo.App. 114; Coughlin v. Barker, 46 Mo. 54; Doerr v. Cobbs, 146 Mo.App. 342. (3) The deed of Carpenter and the trustees of Morton to the Georgia Realty Company sufficiently imposes upon the lots therein conveyed the building-line restriction contended for by the plaintiff in this action, and since defendant holds by mesne conveyances through that deed, he, as owner and in the use of his lots, is bound by that restriction. Meriwether v. Joy, 85 Mo.App. 634; Kitchen v. Hawley, 150 Mo.App. 497; Fete v. Foerstel, 159 Mo.App. 75; Doerr v. Cobbs, 146 Mo.App. 342; Kenwood Land Co. v. Investment Co., 169 Mo.App. 715. (4) The deeds to Brueggemann, to the plaintiff and to the Georgia Realty Company sufficiently show an intention on the part of the common grantors therein to invest the plaintiff with a beneficial interest in the enforcement of the building-line covenant imposed by said deeds, and the defendant took title to the lots owned by him with notice of all said deeds. R. S. 1919, secs. 2198-2199; King v. Union Tr. Co., 226 Mo. 351; Bobst v. Williams, 287 Mo. 317; Teutenberg v. Hoover, 250 S.W. 561. (5) The fact that the cotenants (common source of title) conveyed the first lot to Hazenstab without a restrictive covenant does not militate against the subsequent adoption and imposition by them of a general building plan calling for the building line sought to be enforced by this action. Fete v. Foerstel, 159 Mo.App. 75; Hart v. Rueter, 223 Mass. 211; Hano v. Bigelow, 155 Mass. 341. (6) The fact that, after the restrictive covenants were established, and plaintiff had acquired a beneficial interest in their enforcement and the deed to the Georgia Realty Company had been made, the surrounding territory became "commercial" and as such did not call for any such restriction does not destroy the right to enforce the restrictive covenants. The rule, affirmed in Trustees v. Thatcher, 87 N.Y. 311, is not followed in Missouri. Spahr v. Cape, 143 Mo.App. 114; Noel v. Hill, 158 Mo.App. 426; Thompson v. Langan, 172 Mo.App. 64. (7) There is no estoppel by laches shown in this record. Safe Deposit Company v. Kennett Est., 101 Mo.App. 370, and cases there cited.

BRUERE, C. Allen, P. J., and Daues, J., concur; Becker, J., not sitting.

OPINION

BRUERE, C.--

This is a suit by injunction to restrain the defendant, appellant here, from erecting, on premises adjoining those of the plaintiff, a building within twenty feet south of the south line of Delmar avenue, in the city of St. Louis, Missouri. From a judgment granting the relief prayed for defendant appeals...

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