Semple v. Schwarz

• Decision Date: 03 March 1908
• Citation: 130 Mo. App. 65,109 S.W. 633
• Parties: SEMPLE v. SCHWARZ et al.
• Court: Missouri Court of Appeals

109 S.W. 633

130 Mo. App. 65

SEMPLE v. SCHWARZ et al.

St. Louis Court of Appeals. Missouri.

March 3, 1908.

Rehearing Denied March 31, 1908.

1. VENDOR AND PURCHASER — BONA FIDE PURCHASER — NOTICE — RECORDING DEEDS.

Under Rev. St. 1899, § 924 (Ann. St. 1906, p. 846), providing that the recording of a deed imports notice to all persons of the contents thereof, the recording of a deed containing covenants restricting the use of the premises gave notice of such restrictions to defendant, a purchaser from the grantee, though no mention of the restrictions was made in the deed to defendant.

2. COVENANTS — RESTRAINING USE OF PREMISES — ACTIONS FOR BREACH.

Where, in a suit for the violation of a covenant in a deed limiting the use of the premises, it appeared that the owner platted a tract of land into lots, including the premises in question, and that conveyances of lots were by deed containing a similar covenant, the exclusion of evidence with respect to the owner subsequently platting another tract and conveying lots therein by deeds containing different covenants was not erroneous.

3. SAME — CONSTRUCTION — "BUSINESS."

A covenant in a deed conveying a lot that but one building shall be erected thereon for the exclusive use of a private residence, and that the lot shall not be "used or occupied for trade or business of any kind whatever," prohibits, during the life of the covenant, the owner from maintaining a physician's office on the premises and there receiving and treating patients, since the word "business," defined as that which busies one, or that which engages his time, attention, or labor, as his principal concern or any particular occupation or employment engaged in for livelihood or gain, as trade, art, or profession, includes the practice of medicine.

Appeal from St. Louis Circuit Court, Horatio D. Wood, Judge.

Action by Mary H. Semple against Henry Schwarz and another. From a judgment for plaintiff, defendants appeal. Modified and rendered.

Joseph Scott Fullerton, now deceased, in his lifetime owned a tract of land in the city of St. Louis, stretching from Boyle to Taylor avenue for about 2,090 feet, bounded on the north by a line parallel with Olive street and distant therefrom 155 feet, on the south by McPherson avenue, on the east by Boyle avenue, and on the west by Taylor avenue. The strip is bisected in nearly equal parts by Newstead avenue, 60 feet wide, running north and south. Fullerton laid off said tract, and platted the same as a subdivision of the city of St. Louis, which platted subdivision was duly executed by him on September 21, 1891, and was recorded in the office of the recorder of deeds of said city. In laying off said subdivision, Fullerton laid off a street and two alleys running east and west through said tract, and parallel with Olive street. The street was designated on the plat of the subdivision as "Fullerton's Westminster Place." The street is 70 feet wide; the north line being 314 feet from Olive street. The alleys are 15 feet wide. The south line of the alley north of the street is 154 feet from the street, and the north line of the alley south of the street is 145 feet from the street. In laying out said subdivision, Fullerton subdivided so much of said land as fronted north and south on "Fullerton's Westminster Place," and as laid between said street and said alleys, into building lots. The lots as laid out and platted run north and south between parallel lines, and front on "Fullerton's Westminster Place." They run back to the alleys and are 60 feet wide, except the corner lots, which are 80 feet wide. So much of the tract as lies between the south line of the south alley and McPherson avenue, Fullerton did not divide into building lots until the year 1896, when he subdivided it into lots, fronting them on McPherson avenue, and designated the subdivision as "Fullerton's Second Westminster Addition, in City Blocks 4580S, 4581S." To make the property in Fullerton's First subdivision, fronting on "Fullerton's Westminster Place," a first-class, high-priced, exclusive residence place, Fullerton spent large sums of money in grading, shaping, and otherwise improving the property, and imposed on each lot fronting on said "Fullerton's Westminster Place" uniform easements, covenants, and restrictions as to the mode, manner, and purpose of using said lots, which restrictions were to continue for the period of 25 years, and adopted a form of deed for the conveyance of each of said lots, containing said uniform easements, restrictions, etc. With few exceptions all of the lots in said subdivision have been sold by Fullerton, or his testamentary trustee, and the purchasers have improved them by the erection thereon of expensive and sightly residences. The covenants and restrictions contained in the uniform deed adopted and used by Fullerton in his lifetime, and by his testamentary trustee since his death, that are pertinent to the issues in this case are as follows: "But one building shall be erected or placed upon said lot, and such buildings shall never be used or occupied for any purpose except for that of private residence exclusively; nor shall any part or portion thereof ever be used or occupied except solely as a residence; nor shall any such building be arranged or ever used or occupied as flats; nor shall said lot or any part thereof ever be used or occupied for trade or business of any kind whatever."

On or about April 1, 1893, Fullerton sold to William G. Boyd lot No. 18 upon the plat of "Fullerton's Westminster Place addition," fronting 80 feet on the north line of Fullerton's Westminster Place, and running back to the alley, and conveyed the same to Boyd by a deed containing the covenants and restrictions above set out. This deed was duly recorded in the recorder's office of the city of St. Louis on April 1, 1893. The deed recites that said Boyd accepted it subject to the aforesaid easements and restrictions, and covenanted therein with said Fullerton, his successors and assigns, that he, his heirs and assigns, should forever faithfully observe and perform said several restrictions and conditions, and each of them, and if he (the said Boyd), or any person claiming under him, should at any time violate or attempt to violate, or should omit to perform or to observe, any of the foregoing restrictions and conditions, it should be lawful for any person owning a lot in "Fullerton's Westminster Place addition," which should be subject to the same restrictions or conditions in respect to which default should be made, to institute and prosecute appropriate proceedings in law and equity for the wrong done or attempted, and the said Fullerton covenanted with the said Boyd, his heirs and assigns, that he (the grantor) would not at any time thereafter convey or otherwise dispose of any lot in "Fullerton's Westminster Place addition," except upon and subject to such restrictions and conditions as hereinbefore mentioned, and such as were common to all the lots in said subdivision. Boyd did not build on the lot, but, on the 14th day of August, 1901, for a consideration of $13,000, conveyed the same to defendant J. Laura Schwarz by general warranty deed. (No mention of any restrictions is made in this deed.) J. Laura Schwarz and her husband, Henry Schwarz, acting together, had a dwelling erected on the lot at a cost of $26,000. Defendant Henry Schwarz is a practicing physician and a lecturer in the Medical Department of Washington University. His practice is confined principally to obstetrics and the diseases of women. Both defendants approved the plan of the house. The lot is a corner lot, and the house fronts on "Fullerton's Westminster Place," and the main or family entrance is from this street. There is also a side entrance on Newstead avenue to a room of the residence that was planned and set apart by defendants as a reception room for all persons who might call at the residence to consult Dr. Schwarz professionally, and on the street door of this room is tacked a card or doorplate, with the name "Dr. Schwarz" thereon; and at the curb immediately in front of the entrance to this room is a carriage step, with Dr. Schwarz's name cut on it. Plaintiff acquired lot No. 2, in the subdivision fronting on "Fullerton's Westminster Place" (the second lot west of Newstead avenue), and in 1892 erected an expensive dwelling thereon, which she has ever since and now occupies as a residence. The suit is to enjoin defendants from maintaining and using any part of their residence for the reception and treatment of patients by Dr. Schwarz. The petition alleges that defendants are violating the covenants in the Boyd deed by the use of their residence as a doctor's office and by the reception and treatment of patients therein. The answer denies that the use which defendants are making of their property violates said restrictions, and pleads in estoppel sundry violations of the restrictions and covenants, in which violations it is alleged plaintiff and all other owners of lots in said subdivision have long acquiesced. The judgment of the circuit court was that defendants be enjoined from using any part of their dwelling for the purpose of receiving and treating sick people therein. From this judgment defendants appealed.

Dr. Schwarz was introduced as a witness by plaintiff. He testified that he was a lecturer on obstetrics in the Medical Department of Washington University; that he kept a free clinic for women from 11 o'clock a. m. to 12 M., Mondays, Wednesdays, and Fridays, on Locust street, and that his surgical operations were performed at St. Andrew's Hospital and St. Luke's Hospital; that he had no office; that he had been in practice in St. Louis for 20 years, and was called to see patients at all hours of the day and night; that in his 20 years' experience as a physician he had found it impossible to prevent patients calling to see him at his home at all hours when it was expected ...