Porter et al. v. Johnson et al.

• Citation: 115 S.W.2d 529
• Decision Date: 07 March 1938
• Docket Number: No. 19076.,19076.
• Parties: JESSE L. PORTER ET AL. APPELLANTS, v. CARL R. JOHNSON ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

115 S.W.2d 529

JESSE L. PORTER ET AL. APPELLANTS, v. CARL R. JOHNSON ET AL., RESPONDENTS.

No. 19076.

Kansas City Court of Appeals, Missouri.

March 7, 1938.

Appeal from the Circuit Court of Jackson County. — Hon. Ben Terte, Judge.

REVERSED AND REMANDED (with directions).

Bowersock, Fizzell & Rhodes for appellants.

L. Amasa Knox, Chas, H. Calloway and Carl R. Johnson pro se for respondents.

SPERRY, J.

This is an action brought by plaintiffs below, who will be known here as plaintiffs, against Carl R. Johnson and Carrie Johnson, as defendants. The latter will be referred to in this opinion as defendants. Plaintiffs are the owners of certain tracts of land, particularly described in the petition, same being a part of the land described in a restrictive agreement hereinafter set out in full.

The owner of one parcel of the land mentioned in the restrictive agreement, and a signer of same, on October 7, 1935, sold and delivered possession of said property, same being located at 2602 Tracy, and described as:

The North 2 2/3 feet of the East 117.5 feet of lot 21, and the South 30 2/3 feet of the East 117.5 feet of lot 22. all in block 6, Porter Park, an addition to Kansas City, Jackson County, Missouri, to defendants, Carl R. and Carrie Johnson, persons of the Negro race. This sale to negroes was in violation of the restrictions. They entered into immediate possession and now occupy and claim title to said property. This they did with full knowledge of the restrictive agreement. Plaintiffs prayed for relief by mandatory injunction, requiring defendants to vacate said property, and that their deed thereto be cancelled. Before conclusion of the trial two of the plaintiffs withdrew from the case as parties plaintiff, leaving these appealing plaintiffs. The case was tried in equity and the trial court refused plaintiffs the relief prayed for, or any relief, and entered judgment for defendants. From this judgment the remaining plaintiffs prosecute this appeal. The restrictive agreement above mentioned was pleaded and was in evidence. It is in words and figures, as follows:

AGREEMENT.

The undersigned owners of land improved and unimproved described as follows:

The North 25 feet of Lot 14, all of Lots Fifteen (15), Sixteen (16), Seventeen (17), Eighteen (18), Nineteen (19), and Twenty (20), the South Fourteen (14) feet of Lot Twenty-one (21), and the East One hundred seventeen and one-half feet (117.5) of the North thirty-six feet (36) of Lot Twenty-one (21), and the East one hundred seventeen and one-half (117.5) feet of Lot Twenty-two (22), Block Six (6), Porter Park, an addition in Kansas City, Missouri, in Kansas City, Jackson County, Missouri and of various interests in said property hereby agree with each other and mutually bind themselves their respective heirs, successors and assigns the agreement of each being made in consideration of the agreement of each other to keep and observe the following restrictions with regard to the respective ownership use and disposition of said property.

1. No part of said property at said time shall be owned, occupied or used by or permitted or suffered to be owned, occupied or used by any person or persons of the Negro race or descent.

2. No part of said property shall be by any or either of the parties hereto their respective heirs and assigns or by anyone in their name or behalf conveyed, deeded, leased, willed, sold, rented or in anywise transferred to any person or persons of the Negro race or descent.

3. These restrictions shall remain in full force and effect for fifteen years from the date hereof and at the end of said period shall become automatically renewed and extended for an additional period of fifteen years, unless the persons owning a majority of the front feet abutting on the streets above described shall execute and acknowledge and cause to be recorded an instrument evidencing their election and intention that said restrictions shall not remain in force after said original period of fifteen years.

It is further agreed that the foregoing restrictions shall be inserted in all deeds, leases, deeds of trust and other conveyances and transfers of any part of said property hereafter made by any party hereto, his heirs and assigns.

The restrictions herein set forth shall run with the land and bind the present owners their respective heirs, successors and assigns and all parties claiming by, through or under them and whether said restrictions be expressed in deeds thereof or not shall be taken to hold, agree and covenant with the owners of said lots their heirs, successors and assigns and with each of them to comply with and observe said restrictions, but no restriction herein set forth shall be personally binding on any corporation, person or persons except in respect to breaches committed during its, his or their seizen of or title to said land and the owner or owners of any of the above land shall have the right to sue for and obtain an injunction prohibitive or mandatory to prevent the breach of or to enforce the observance of the restrictions above set forth in addition to ordinary legal actions for damages or other relief at law or in equity and failure by the owner or owners of any of the lands above restricted to enforce any of the restrictions herein set forth at the time of its violation shall in no event be deemed a waiver of the right to do so thereafter."

The instrument was duly filed for record, and was recorded in the office of the Recorder of Deeds within and for Jackson County, Missouri, May 19, 1921.

Defendants' contention is that the restrictive agreement is not enforceable. Such a contract is one which the parties entering into it had a right to make; and it is not void because of public policy. [Koehler v. Rowland (Mo. Sup.), 205 S.W. 217, l.c. 220.] It is, therefore, valid and binding. [Stevens v. Annex Realty Co., 173 Mo. 511.] Restrictive agreements affecting real estate create an easement in favor of the owner of one parcel of land within the restricted district in and to all other parcels located therein. This easement is a property right which may not be taken away against the will of the owner, by reason of constitutional provisions, for private purposes, either with or without just compensation; and it can only be taken for public purposes by condemnation, under the power of eminent domain, after payment of just compensation. [State ex rel. Britton v. Mulloy, 332 Mo. 1107, l.c. 1111, 1112.] Such property right, created by contract, will be protected by injunction where the issues are between parties to the contract. [State ex rel. Britton v. Mulloy, supra, l.c. 1112.] The fact that the restrictive agreement was not contained in deeds of a common grantor but rests on contract was between the then owners of the various parcels covered, does not affect the right of any signer, or his grantees, to sue for enforcement of the covenant. This is true even though there be no provision in the restrictive agreement for re-entry or forfeiture. [Rombauer v. Compton Heights Christian Church, 328 Mo. 1.] In a case such as the one at bar the covenantee may stand upon his contract and the law will enforce it, irrespective of the amount of monetary damage involved. [Rombauer v. Compton Heights Christian Church, supra, l.c. 17.] Title to real estate is not involved in this kind of action. [Rombauer v. Compton Heights Christian Church, supra.] Hence, courts of appeal have jurisdiction. [Compton Hill Improvement Co. v. Strauch, 162 Mo. App. 76; Noel v. Hill, 158 Mo. App. 426.]

It is urged that there has been a complete abandonment of the restrictive agreement. None of the parties prosecuting this appeal have abandoned. Abandonment of a written contract may be either by formal release or by conduct of the parties. [Creamery Package Mfg. Co. v. Sharples Company, 71 S.W. 1068.] But one party to a contract may not deprive another of its benefits simply because of his own conduct, or even by executing a written release, unless the party seeking to enforce it has himself abandoned it, or acquiesced in the conduct of the other. Otherwise a contract would be binding only so long as all parties thereto consented; and if that be the law, then all contracts become of less value than the value of the services of the lawyers in preparing them. There is nothing in this contract to prevent all of the owners from abandoning it at any time; and a majority could have bound all if they had acted at the time and in the manner stated in the contract. [Noel v. Hill, 158 Mo. App. 426, l.c. 443.]

The contract under consideration was, in effect, made for a period of thirty years from its date; but it provided a method whereby it might be terminated at the end of fifteen years. If that method was not followed it is still binding on all the parties and their grantees. The method for abandonment, as provided therein, was as follows: The owners of a majority of the front feet of the property within the district facing on Tracy Avenue might sign, execute, and file for record a formal abandonment of the restrictive agreement, provided same was done prior to the expiration of the first fifteen year period; and in that event the restrictive agreement should cease to be operative from and after May 1, 1936. Such a formal contract of abandonment was filed by some of the lot owners; but there was no evidence offered, or claim made, that the signers thereof own a majority of the front feet of the lots embraced within the district. Abandonment is an affirmative defense which respondents were required to establish. The record being as it is we must hold that the above mentioned instrument fails to meet the requirements of formal abandonment, as they are above set out. The contract, then, became automatically effective, or continued in effect, for the second period provided therein. It is binding on every lot owner in the district because the instrument was signed by all of the...