Noell v. Remmert
| Decision Date | 04 September 1930 |
| Docket Number | No. 29895.,29895. |
| Citation | 30 S.W.2d 1009 |
| Parties | CHARLES P. NOELL and LOUISE NOELL, Appellants, v. WILLIAM REMMERT and OLIVIA K. REMMERT. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of St. Louis County. — Hon. Jerry Mulloy, Judge.
AFFIRMED.
Charles P. Noell and Hensley, Allen & Marsalek for appellants.
(1) By reason of the positive, false and fraudulent representations of defendants to plaintiffs that the property in Country Club Court Addition, immediately adjacent to the property acquired by plaintiffs, was restricted of record against the erection of flats and apartments, whereby plaintiffs, in reliance thereon, were induced to purchase their lot and home, defendants are estopped to exercise or assert any right to use such property other than in conformity with such representations, and plaintiffs are entitled, in equity, to restrain such use thereof. Bimson v. Bultman, 3 App. Div. 198, 38 N.Y. Supp. 209; Turner v. Howard, 10 App. Div. 555, 42 N.Y. Supp. 335; Nissen v. McCafferty, 195 N.Y. Supp. 549, 202 App. Div. 529; Hubbard v. Slavens, 218 Mo. 598; Kirk v. Hamilton, 102 U.S. 68, 26 L. Ed. 79; De Lashmutt v. Teetor, 261 Mo. 412, 441: Lange v. Ins. Co., 254 Mo. 488; Spence v. Renfro, 179 Mo. 417; Palmer v. Welch, 171 Mo. App. 596; Philip v. Land Co., 226 N.Y. 507, 163 N.Y. Supp. 993, 117 App. Div. 260; Trustees etc. v. Smith, 118 N.Y. 634; Matter of Franckel, 157 N.Y. 603; Johnson v. Schimp, 197 Cal. 43. 239 Pac. 401; Tallmadge v. Bank, 26 N.Y. 105; Berry, Restrictions on Use of Real Property, pp. 33-35, secs. 23, 24; 32 C.J. 204, note 44, C. (2) All of the elements of estoppel in pais are present in the instant case, namely, (a) false representations of material facts, (b) made with full knowledge thereof, (c) to one who was ignorant of the truth of the matter, (d) with the intention that he should act thereupon, and (e) upon which he was induced to act to his injury. Bigelow on Estoppel (1890), p. 570; Blodgett v. Perry, 97 Mo. 263; Shields v. McClain, 75 Mo. App. 636; Palmer v. Welch, 171 Mo. App. 580, 596; Grafeman Dairy Co. v. Bank, 290 Mo. 311, 333; Guffey v. O'Reilley, 88 Mo. 418; Olden v. Hendrick, 100 Mo. 533; Pollard v. Ward, 289 Mo. 275, 286; Wyatt, Admr., v. White, 192 Mo. App. 551. (3) In view of defendants' positive representations that the property in question was restricted of record against the erection of flats and apartments, plaintiffs may not be denied relief upon the ground that the record title to such property showed no such restrictions and that plaintiffs thereby had constructive notice thereof. Olden v. Hendrick, 100 Mo. 533; Palmer v. Welch, 171 Mo. App. 580; Evan v. Forstall, 580 Miss. 31; 21 C.J. 1131, sec. 131; Rice v. Bunce, 49 Mo. 231; Clark v. Edgar, 84 Mo. 106; Bailey v. Smock, 61 Mo. 213. (4) Evidence of other similar representations made or authorized to be made by defendant Remmert was competent as showing a common fraudulent scheme. Hobbs v. Boatwright, 195 Mo. 693; Jones on Evidence (3d) 191, sec. 142.
Taylor R. Young and Abbott, Fauntleroy, Cullen & Edwards for respondents.
(1) What respondent said in making other sales to other purchasers of lots in this subdivision was improperly admitted, and should not be considered in the deciding of this case. Aiken v. Kennison (Vt.), 5 Atl. 757; Elbert v. Mitchell, 109 N.W. 181; Jones v. Ellis' Estate, 35 Atl. 489; Pictorial League v. Nelson (Vt.), 37 Atl. 247; Commonwealth v. Jackson, 132 Mass. 16. (2) Before estoppel can be raised there must be certainty of every intent, and the facts alleged to constitute it are not to be taken by argument or inference. The statement in the advertisement that forty more houses would be built is promissory in its nature, does not amount to fraud, and the word "houses" includes structures intended for the private occupancy of a family or families. 2 C.J. 1139, sec. 139; Sutton v. Danielson, 100 Mo. 150; Baylin v. Tyrogg, 273 Mo. 257; Peterson v. Gales (Wis.), 47 A.L.R. 956. (3) The testimony warrants the conclusion that the plaintiff acted solely upon the reports of title examiners whom he employed for the express purpose of giving him information as to the state of the title, and this fact, taken in connection with his failure to inspect the records, is entitled to great weight in determining the issues in this matter. Clark v. Edgar, 84 Mo. 111; Glasscock v. Minor, 11 Mo. 657; Bailey v. Smock, 61 Mo. 217; Yeates v. Pryor, 11 Ark. 66; 26 C.J. 1162, sec. 75. (4) A restrictive covenant, be it either written or oral, should not be enforced where any doubt exists. To doubt is to deny, and intention of parties as expressed in covenant or conversation and gathered from surrounding circumstances — such as contracting to buy only upon a favorable report as to title by a title company — is controlling. Pierce v. Union Trust Co., 311 Mo. 286; Fortesque v. Carroll, 76 N.J. Eq. 583, Ann. Cas. 1912A 79; Bolin v. Investment Co., 273 Mo. 262; Charlot v. Regents Mercantile Corporation, 251 S.W. 423; Bolin v. Investment Co., 273 Mo. 257, 200 S.W. 1059, L.R.A. 1918-C 869.
The plaintiffs in this suit are husband and wife and the defendants are husband and wife. The plaintiffs, owners of lot 14 and a residence thereon, a part of a certain subdivision within the city of Clayton in St. Louis County, designated as Country Club Court, brought this suit asking that defendants, their agents, associates and grantees be permanently enjoined from erecting, building, maintaining or using any apartments or flats in a subdivision known as Country Club Court Addition, which adjoins said Country Club Court.
The petition alleges purchase by defendant William Remmert, from the Davis estate, about June, 1924, of a certain tract of land in St. Louis County, containing a little more than twelve acres. This tract includes Country Club Court, which was first platted and improved, and covers also Country Club Court Addition, platted later. Country Club Court covers the south portion of the tract, and Country Club Court Addition, the north and northwest portion of the tract. The plaintiffs allege that shortly after the purchase of the tract of land from the Davis estate, defendant William Remmert, acting for himself and his wife, undertook to improve the same and set it out as a high-class residential subdivision, exclusively for homes of one family only, and on which there were to be no apartments or flats; that pursuant to said scheme, defendants caused the plat of the southern portion of the tract to be recorded, designating the same as Country Club Court, and dividing Country Club Court into building lots; that pursuant to said general scheme of creating a high-class residential subdivision, defendant William Remmert advertised in the newspapers of St. Louis, and held out to the public, that Country Club Court was to be a high-class residential subdivision, and restricted to homes of one family only, and that no flats or apartments were permitted therein: that thereafter in the spring of 1925, he planned a high-class residential subdivision in the northern portion of the said tract which he named Country Club Court Addition, exclusively for homes of one family only, and in which there were to be no flats or apartments, and pursuant thereto filed a plat dividing the northern portion of the tract into lots, and that thereafter he advertised in the newspapers of the city of St. Louis and held out to the public generally that he had created a high-class residential subdivision, restricted to one family only, and in which there was not to be permitted the erection of apartments or flats. Plaintiffs next allege that about September, 1925, having read said advertisements as to the character of restrictions upon Country Club Court and Country Club Court Addition, they called upon the defendant William Remmert, and were told by him and his assistant that Country Club Court and Country Club Court Addition were restricted of record to high-class residences, for one family only, and that no apartments or flats could be erected under the restrictions of record in either of said subdivisions; that plaintiffs relied on and believed said statements, and were without knowledge of the falsity thereof, and told defendant William Remmert, at the time, that they were desirous of securing a home in a district not congested, and away from flats and apartments. Plaintiffs further allege that the deed from the Davis estate to William Remmert, as of record, contained no restrictions against apartments or flats as said Remmert and his assistant fully knew, and that they knew their statements concerning the same were false and fraudulent, and that such statements were made with the purpose of defrauding the plaintiffs, and made to induce plaintiffs to purchase one of said lots and secure from them a contract to build a home thereon. Plaintiffs next allege that believing the said advertisements and the oral statements of defendant William Remmert and his assistant to be true, they did, about September, 1925, enter into a contract to purchase of defendant lot 14 in said Country Club Court, and entered into a contract with said Remmert to build thereon, for them, a high-class residence for the sum of $31,500; that defendant did erect said residence and delivered to plaintiff a general warranty deed to said lot about November 16, 1925, and later plaintiffs moved into their said residence with their children. Plaintiffs further allege that to the north and in the rear of their home, defendant made a narrow alley or driveway which is about twenty-five feet north of their said residence; that at and before the time of purchase of said lot, defendant informed the plaintiffs that said alley or driveway would be private, and there would not be much automobile traffic.
It is further alleged that defendants, in violation of their statements to plaintiffs that the restrictions of record prevented the erection of...
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