Pierce v. St. Louis Union Trust Company

• Decision Date: 22 December 1925
• Docket Number: 24643
• Citation: 278 S.W. 398,311 Mo. 262
• Parties: THOMAS M. PIERCE, Treasurer of Vandeventer Parks, et al. v. ST. LOUIS UNION TRUST COMPANY et al., Appellants
• Court: Missouri Supreme Court

278 S.W. 398

311 Mo. 262

THOMAS M. PIERCE, Treasurer of Vandeventer Parks, et al. v. ST. LOUIS UNION TRUST COMPANY et al., Appellants

No. 24643

Supreme Court of Missouri

December 22, 1925

Appeal from St. Louis City Circuit Court; Hon. Robert W Hall, Judge.

Affirmed.

S T. G. Smith for appellants.

(1) The provisions of the deed from Vandeventer et al. Peck et al trustees, do not prohibit the use of the property in Vandeventer Place as a hospital. Bolin v. Tyrol Inv. Co., 273 Mo. 257; Kitchen v. Hawley, 150 Mo.App. 497; Morrison v. Darr, 201 S.W. 1147; Hurley v. Brown, 60 N.Y.S. 846; Gallon v. Hussar, 172 A.D. 393; Biggs v. Sea Gate Assn., 211 N.Y. 482; Stone v. Pillsbury, 167 Mass. 332; Mayor v. Water Works Co., 152 Ala. 306; Clark v. Jammes, 87 Hun, 215. (2) An hospital is not a "trade or business dangerous, noxious or offensive to the neighboring inhabitants." Paul v. House of St. Giles the Cripple, 154 N.Y.S. 96; Heaton v. Parker, 116 N.Y.S. 46; Carr v. Riley, 198 Mass. 70; Stone v. Pillsbury, 167 Mass. 332; Doe v. Bird, 6 Carr. & Payne, 195; Commonwealth v. Charity Hospital, 199 Pa. St. 119; Moller v. Presbyterian Hospital, 72 N.Y.S. 483; Kitchen v. Hawley, 150 Mo.App. 497; Gallon v. Hussar, 172 A.D. 393; Biggs v. Sea Gate Assn., 211 N.Y. 482; Heaton v. Packer, 116 N.Y. 46; Moubray v. Imp. Co., 178 A.D. 737; Kitching v. Brown, 180 N.Y. 414; Carr v. Riley, 198 Mass. 70; Easterbrook v. Hebrew Asylum, 85 Conn. 289; Tobey v. Moore, 130 Mass. 448. (3) The provisions of the deed to Vandeventer Place from Vandeventer et al. to Peck et al., trustees, are so indefinite, uncertain and conflicting as to be void on their face. Bolin v. Tyrol Inv. Co., 273 Mo. 257; Morrison v. Darr, 201 S.W. 1147; Kitchen v. Hawley, 150 Mo.App. 497; Biggs v. Sea Gate Assn., 211 N.Y. 482; Easterbrook v. Orphan Society, 85 Conn. 289; Stone v. Pillsbury, 167 Mass. 332; Fortesque v. Carrol, 76 N.J.Eq. 583; Kurtz v. Potter, 60 N.Y.S. 764, 167 N.Y. 586; Hurley v. Brown, 60 N.Y.S. 846. (4) The conditions affecting Vandeventer Place have so changed since the date of the deed from Vandeventer et al. to Peck et al., trustees, as to destroy the provisions attempting to create a high-class, exclusive district, if such was the original effect of said deed. Koehler v. Rowland, 275 Mo. 573; Trustees Columbia College v. Thacher, 87 N.Y. 311; Hobson v. Cartwright, 93 Ky. 368; Los Angeles Assn. v. Muir, 136 Cal. 36; McClure v. Leaycraft, 183 N.Y. 36; Amerman v. Deane, 132 N.Y. 355; Batchelor v. Hinkle, 210 N.Y. 243; Page v. Murray, 46 N.J.Eq. 325; Orne v. Fridenberg, 143 Pa. St. 487; Jackson v. Stevenson, 156 Mass. 496; Kneip v. Schroeder, 255 Ill. 621; Star Brewery Co. v. Primas, 163 Ill. 652; Fortesque v. Carrol, 76 N.J.Eq. 583. (5) The court should have admitted the evidence offered by the defendants tending to show changed conditions in and about Vandeventer Place. Koehler v. Rowland, 275 Mo. 573. (6) By placing certain restrictions on the front seventy feet of the lots in Vandeventer Place and other conditions on the remaining seventy-four feet of each lot, the attempt to restrict the lots in Vandeventer Place failed. By specifying the character of stuctures and uses of the property in Vandeventer Place, all structures and uses not mentioned in the deed are by operation of law permissible. Bolin v. Tyrol Inv. Co., 273 Mo. 257; Kitchen v. Hawley, 150 Mo.App. 497, and cases cited under 1. (7) Apartment houses, office buildings, hospitals, private schools, boarding houses, churches, homes for the aged and for abandoned infants, and a great many lines of manufacturing can be built in Vandeventer Place without violating the terms of the deed from Vandeventer et al. to the trustees. Morrison v. Darr, 201 S.W. 1147; Bolin v. Tyrol Inv. Co., 273 Mo. 257; Kitchen v. Hawley, 150 Mo.App. 497; Kitching v. Brown, 180 N.Y. 414; Fortesque v. Carroll, 76 N.J.Eq. 583; McClure v. Leaycraft, 183 N.Y. 36; Clark v. Jammes, 87 Hun, 215; Hurly v. Brown, 60 N.Y.S. 846; Amerman v. Deane, 132 N.Y. 355; Paul v. House of St. Giles the Cripple, 154 N.Y.S. 96; Gallon v. Hussar, 172 A.D. 393; Easterbrook v. Orphan Asylum, 85 Conn. 289; Stone v. Pillsbury, 167 Mass. 332; Tobey v. Moore, 130 Mass. 448; Moubray v. Imp. Co., 178 A.D. 737; Carr v. Riley, 198 Mass. 70; Heaton v. Parker, 116 N.Y.S. 46; Doe v. Bird, 6 Carr. & Payne, 195; Rowland v. Hospital, 72 N.Y.S. 483. (8) Where property is restricted to a high-class exclusive residental district, if the evidence shows that changes in the neighborhood have taken place to the extent defendants offered to prove at the trial of this case, restrictions covering the property are at an end. Koehler v. Rowland, 275 Mo. 573. (9) The court should have permitted the defendants to introduce the evidence offered tending to show the value of property in Vandeventer Place with the restrictions in force and with the restrictions removed. Los Angeles Land Co. v. Muir, 136 Cal. 36; McClure v. Leaycraft, 183 N.Y. 36; Schwartz v. Duhne, 118 A.D. 105; Star Brewing Co. v. Primas, 163 Ill. 652; Amerman v. Deane, 132 N.Y. 355; Batchelor v. Hinkle, 210 N.Y. 243; Page v. Murray, 46 N.J.Eq. 325; Jackson v. Stevenson, 156 Mass. 496.

T. M. Pierce and Samuel H. Liberman for respondents.

(1) The use or occupancy of No. 6 Vandeventer place for any purpose other than that of a private residence violates the covenants and restrictions applicable to the premises. Koehler v. Rowland, 275 Mo. 573; Kenwood v. Hancock Inv. Co., 169 Mo.App. 715; Sanders v. Dixon, 114 Mo.App. 229; Morrison v. Hess, 231 S.W. 997; Peters v. Buckner, 232 S.W. 1024; Adams v. Cary, 226 S.W. 833; Milligan v. Balson, 264 S.W. (Mo. App.) 73; Bornett v. Vaughn Institute, 199 N.Y.S. 45; Barnett v. Vaughn Institute, 197 N.Y. 541; Smith v. Graham, 147 N.Y.S. 773; Cromwell v. American Bible Society, 195 N.Y.S. 333; Neidlinger v. New York Assn. for Poor, 200 N.Y.S. 852; Paine v. Bergrose Dev. Co., 198 N.Y.S. 311; Baumert v. Malkin, 235 N.Y. 115; Powers v. Radding, 225 Mass. 110; Harris v. Roraback, 137 Mich. 292; Rosensweig v. Rose, 201 Mich. 681; Farley v. Finn, 197 N.W. 571. (2) A hospital or institution for incurables is a business dangerous, noxious and offensive to the neighboring inhabitants. Bramwell v. Yacy, 48 L. J. Ch. 339; Gilford v. Babies Hospital, 1 N.Y.S. 448; Rowland v. Miller, 139 N.Y. 93; Evans v. Foss, 194 Mass. 513; Hibberd v. Edwards, 235 Pa. 454. (3) Since Vandeventer Place is still a high-class, exclusive, residential district, equity will enforce the covenants and restrictions by injunction. Thompson v. Langan, 172 Mo.App. 64; Rowland v. Miller, 139 N.Y. 93; Lattimer v. Livermore, 72 N.Y. 174; Brown v. Huber, 80 Ohio St. 183; 4 Pomeroy, Eq., sec. 1701; Landell v. Hamilton, 175 Pa. 327. (4) Evidence of changed conditions outside Vandeventer Place was properly excluded. Spahr v. Cape, 143 Mo.App. 114; Noel v. Hill, 158 Mo.App. 426; Thompson v. Langan, 172 Mo.App. 64. (5) Evidence as to camparative values of property in Vandeventer Place as affected by the restrictions was properly excluded. Reed v. Hazard, 187 Mo.App. 547; Miller v. Klein, 177 Mo.App. 557; Thompson v. Langan, 172 Mo.App. 64; Fete v. Foerstel, 159 Mo.App. 75; Noel v. Hill, 158 Mo.App. 426; Spahr v. Cape, 143 Mo.App. 114.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Suit in equity to enjoin the alleged violation of the restrictive covenants contained in a certain deed or instrument of title affecting Vandeventer Place, a platted addition or subdivision of land in the city of St. Louis. The suit is brought by Thomas M. Pierce, individually and as treasurer of Vandeventer Parks, and some 38 owners of residential property in said addition, as plaintiffs, against St. Louis Union Trust Company and Peyton T. Carr, trustees under the will of Almira W. Kehlor, deceased, holders of the legal title to the real property described as Lots 1, 3, 5 and 7, known as No. 6 Vandeventer Place and John J. Mahon and Julia Mahon his wife, lessees of said property, as defendants.

Plaintiffs' petition is in the conventional form, alleging the existence of the restrictive covenants and their applicability to defendants' property, the violation thereof by defendants, that plaintiffs are without adequate remedy at law, and praying injunctive relief.

The answer admits the deed or instrument containing the restrictive covenants alleged in the petition, but denies their applicability to a hospital or institution for incurables, and by way of affirmative defenses pleads waiver and abandonment of the restrictive covenants and change of conditions in Vandeventer Place and the immediately surrounding or contiguous neighborhood, which change of conditions, it is averred, makes the enforcement of the restrictions inequitable. The answer also admits the ownership of the lots aforesaid as being in the defendant trustees and the lease of the premises to the defendants Mahon for use as hospital for the care of incurables; alleges that the defendants Mahon have never had, and do not purpose at any time to have, in said premises any patients afflicted with any disease or ailments which are contagious; that said hospital has been and will always be conducted in a quiet orderly manner, and that there are no outward signs of any kind by which any person would know to what uses said premises are being put, and that to all outward appearances said premises are being used for residential purposes; that said Mahons use part of said premises for their home and, since August 3, 1921, have continuously resided thereon; that the property in question is no longer suitable or usable as high-grade, exclusive residence property, but can only be profitably used by the owners thereof for such purposes as boarding-houses, hotels, schools, hospitals, orphan asylums, apartment...