Porter v. Pryor
| Decision Date | 28 July 1942 |
| Docket Number | 38006 |
| Citation | 164 S.W.2d 353 |
| Parties | PORTER et al. v. PRYOR et al |
| Court | Missouri Supreme Court |
Rehearing Denied September 8, 1942.
Kaer P Vanice, II, of Kansas City, for appellants.
Bowersock Fizzell & Rhodes, of Kansas City, for respondents.
BRADLEY, Commissioner.
This is an action to enjoin the violation of restrictions affecting certain real estate in Kansas City, Missouri, and to cancel a deed from defendants Whalen to defendants Pryor. The trial chancellor found for the plaintiffs, enjoined violation of the restrictions and cancelled the deed. Defendants appealed. Several separate assignments are made, but it will not be necessary to take these up in detail.
The restricted area is described as follows: 'The north twenty five (25) ft. of lot fourteen (14), all of lots fifteen (15), sixteen (16), seventeen (17), eighteen (18), nineteen (19), and twenty (20), the south fourteen (14) ft. of lot twenty one (21), and the east one hundred seventeen and one half (1171/2) ft. of the north thirty-six (36) ft. of lot twenty one (21), and the east one hundred seventeen and one half (1171/2) ft. of lot twenty two (22) of block (6), Porter Park, an addition in Kansas City, Missouri.'
May 1, 1921, the then owners of the area entered into the restrictive agreement, which was acknowledged and placed of record. The agreement provided as follows: 'This agreement made and entered into this 1st day of May, A.D., one thousand nine hundred and twenty one. Witnesseth:
'The undersigned owners of lands, improved and unimproved, described as follows (here follows the above description) 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 to 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 any one in their name or behalf conveyed, deeded, leased, willed, sold, rented or in any wise transferred to any person or persons of the negro race or descent.
'3. These restrictions shall remain in full force and effect for fifteen (15) years from the date hereof, and at the end of said period shall become automatically renewed and extended for an additional period of fifteen (15) 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 (15) 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 therefor 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 seizin 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.'
There was no termination of the restrictions as provided for in paragraph 3 of the restrictive agreement, hence the restrictions were automatically extended for 15 years from the expiration of the first 15 years.
Prior to November 21, 1936, the defendants Whalen were the owners of the south 32 feet of lot 20 in the restricted area, and on that date, sold and conveyed by warranty deed said portion of lot 20 to the defendants Pryor, who are members of the negro race. May 6, 1937, plaintiffs, members of the white race and owners of lots in the restricted area, filed the present cause.
The present restrictive agreement...
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