Star Brewery Co. v. Primas

• Decision Date: 11 November 1896
• Citation: 163 Ill. 652,45 N.E. 145
• Parties: STAR BREWERY CO. v. PRIMAS.
• Court: Illinois Supreme Court

163 Ill. 652

45 N.E. 145

STAR BREWERY CO.

v.PRIMAS.

Supreme Court of Illinois.

Nov. 11, 1896.

Appeal from appellate court, Fourth district.

Bill by William Primas against the Star Brewery Company and Edward Johnson to enjoin the violation of a negative covenant. From a judgment affirming a judgment in favor of complainant (59 Ill. App. 581), defendant company appeals. Affirmed.Knispel & Ropiequet, for appellant.

Travous & Warnock, for appellee.

This is a bill filed by appellee against the appellant company and one Edward Johnson to enjoin them from in any manner using, or authorizing the use of, certain premises for saloon or dramshop purposes so long as the complainant owns the house known as the ‘Bluff Saloon.’ Answer and replication were filed, and a decree was rendered by the circuit court granting a perpetual injunction in accordance with the prayer of the bill. This decree has been affirmed by the appellate court (59 Ill. App. 581), and the object of the present appeal is to review such judgment of affirmance. In their opinion the appellate court make the following statement of facts: ‘The appellee was the owner of a saloon building and premises he had purchased from one Anna Hanslick, situated in Glen Carbon, known as the ‘Bluff Saloon,’ which in February, 1891, he leased to one William Winters, who ran the saloon until November, 1891, when appellee leased it to the St. Louis Brewing Association, who sublet to the firm of Martin & Paul for saloon purposes, and they so used it. On the 18th day of August, 1891, the appellee sold and conveyed to William Winters a vacant lot situated near the said Bluff Saloon, which deed contained the following clause: ‘The premises hereby conveyed are not to be used for saloon or dramshop purposes so long as the grantor owns the house formerly owned by Hanslick.’ Winters proceeded to erect a large house on said lot, which was afterwards, in May and June, 1892, used by him for saloon purposes, but he was restrained from continuing in the business, on the complaint of the St. Louis Brewing Association and Martin & Paul, with whom Winters had contracted, on their purchase of his fixtures in the Bluff Saloon, not to keep a saloon within one mile of the Bluff Saloon. The Star Brewery Company desired to purchase the Winters property for the purpose of establishing a saloon, and, having learned of the restriction clause in the deed conveying it to Winters, sought to obtain a written release from appellee, which he refused to give. Winters also sought to obtain such release, and offered to pay $30 therefor, but appellee unqualifiedly refused to grant it. Notwithstanding this refusal, the Star Brewery Company purchased the property of Winters on the 20th day of May, 1893, and established one Johnson in the saloon business there in July thereafter. On the 13th of September the bill in this case was filed by appellee to restrain such use of the property, he still remaining the owner of the Bluff Saloon.'

MAGRUDER, C. J. (after stating the facts).

The question in this case relates to the force and effect of the restriction clause contained in the deed executed on August 18, 1891, by the appellee to Winters, and also to the extent to which that clause is binding, if at all, upon the appellant, holding under a deed executed to it by Winters on May 20, 1893. The clause in question is as follows: ‘The premises hereby conveyed are not to be used for saloon or dramshop purposes so long as the grantor owns the house formerly owned by Hanslick.’ The deed from appellee to Winters refers to a conveyance previously made on January 19, 1891, by Anna Hanslick to appellee, and it is conceded that the house formerly owned by Hanslick is what is known as the ‘Bluff Saloon.’ The tract purchased by appellee from Anna Hanslick was about four acres, of which the premises sold by him to Winters, and which Winters conveyed to appellant, are a part. The Bluff Saloon was situated upon the part of the four acres retained by appellee, and not sold to Winters. The deed from Winters to appellant does not contain the clause, but the deed from appellee to Winters was on record when appellant bought the premises and accepted a deed thereof. In addition to the constructive notice afforded by the record, appellant had actual notice that the clause in question was in the deed to Winters, because both appellant and Winters tried to induce appellee to execute a written release of the restriction imposed by the clause, and offered to pay him money to do so, before appellant made its purchase of the premises from Winters, together with the building erected thereon by Winters. The house called the ‘Bluff Saloon’ is still owned by appellee. With the knowledge of such ownership, and with the further knowledge of the restrictive clause in question, and of appellee's refusal to make a written release of the restriction, appellant bought the property for the purpose of using it for saloon purposes, and in July, 1893, placed Johnson in possession thereof, who at once opened a saloon in the building built thereon by Winters, and from July 19, 1893, up to the time of the commencement of this suit, kept a saloon there. Under these circumstances, is there any reason why an injunction will not lie to restrain a use of the property which is contrary to the terms of the clause in question?

The first reason urged by appellant why the relief asked for should not be granted is that the bill calls the clause in question a ‘condition,’ whereas it is alleged to be a mere restriction. The bill alleges that the premises in question were conveyed by appellee to Winters upon condition that they should not be used for saloon purposes as long as complainant remained the owner of a house, formerly owned by Anna Hanslick, known as the ‘Bluff Saloon,’ situated on another portion of the tract bought from her by appellee; that said Bluff Saloon is used by appellee's tenants for saloon and dramshop purposes; that such tenants pay a higher rent by reason of the agreement to prevent the use of any other land owned by appellee for the same purpose; and that the premises deeded to Winters are so located with reference to the Bluff Saloon as to make a saloon business prosecuted on said premises a competing business, thereby reducing the rental value of the Bluff Saloon. Conditions, besides being express or implied, may be precedent or subsequent. A precedent condition is one which must take place before the estate can vest or be enlarged, and, if land is conveyed upon a precedent condition, the title will not pass until the condition is performed. A subsequent condition is one which operates upon an estate already created and vested, and renders it liable to be defeated. A deed upon condition subsequent conveys the fee when it is executed, but the fee passes subject to the contingency of being defeated as provided in the condition, the grantor having the power of re-entry upon condition broken; and, if there is a breach of the condition, the estate continues in the grantee until defeated by actual entry. Whether a condition is precedent or subsequent depends upon the intention of the parties. At common law no one but the grantor, or his heirs, could enter for a breach of a condition subsequent. 2 Washb. Real Prop. (5th Ed.) marg. pp. 445-447; Martind. Conv. § 124; 2 Devl. Deeds, §§ 958, 959; 3 Am. & Eng. Enc. Law, p. 423, and cases cited. There is nothing in the language of the deed under consideration to indicate that it is a deed upon condition precedent or subsequent. The words ‘upon condition’ are not used. There is no provision for re-entry in case of a breach of the covenant. Such a provision usually indicates an intent to create a condition subsequent. Kew v. Trainor, 150 Ill. 150, 37 N. E. 223. Conditions, especially conditions subsequent, are not favored in law, because they tend to defeat estates; and courts are inclined to construe clauses in deeds as covenants, rather than conditions. Gallaher v. Herbert, 117 Ill. 160, 7 N. E. 511. The clause here in the deed to Winters, though it is not a ‘condition,’ within the legal definition of that term, is a negative covenant. Equity will interpose by injunction to prevent the breach of negative covenants annexed to leases or deeds. The prohibition of their breach is indirectly an enforcement of their specific performance. Equity will interfere by injunction to prevent the breach of an express, negative covenant, even though no substantial injury is caused by such breach. It will also so interfere even though the damages, if any, may be recoverable at law. The reason is that the owner of land, selling or leasing it, may insist upon just such covenants as he pleases, touching the use and mode of enjoyment of the land. He has a right to define the injury for himself, and the party contracting with him must abide by the definition. Steward v. Winters, 4 Sandf. Ch. 587; 2 High, Inj. (3d Ed.) §§ 1142, 1158; Coal Co. v. Schmisseur, 135 Ill. 371, 25...