Thornhill v. Herdt

• Decision Date: 28 June 1939
• Docket Number: No. 24939.,24939.
• Citation: 130 S.W.2d 175
• Parties: THORNHILL et al. v. HERDT et al.
• Court: Missouri Court of Appeals

130 S.W.2d 175

THORNHILL et al. v. HERDT et al.

No. 24939.

St. Louis Court of Appeals. Missouri.

June 28, 1939.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Suit by Edward M. Thornhill and Arthur C. Hoehn, trustees, against Leonhard Herdt and Johanna Herdt, to enjoin the violation of a restrictive agreement concerning the sale, conveyance, leasing or rental of property in a restricted area. From judgment for defendants, plaintiffs appeal.

Affirmed.

D. Calhoun Jones, of St. Louis, for appellants.

Albert E. Hausman, of St. Louis, for respondents.

BENNICK, Commissioner.

This is a suit for an injunction to restrain defendants, who are the present owners of a certain piece of property located on Vine Grove Avenue in the City of St. Louis, from violating a restrictive agreement prohibiting the sale, conveyance, leasing or rental of property in the restricted area to Negroes. Plaintiffs, who are officers of the St. Louis Real Estate Exchange, bring the suit as trustees for the subscribing property owners pursuant to power and authority which has been vested in such officers by the terms of the agreement.

Vine Grove Avenue is a short, residential street, the equivalent of two city blocks in length, which runs from Labadie Avenue on the south to Ashland Avenue on the north. It lies in an unpretentious portion of the city, and in an immediate neighborhood which, for some three blocks towards the east at least, is now and for many years has been largely occupied by Negroes. Indeed there have been a number of Negro families residing at the extreme south end of Vine Grove Avenue itself for more than fifteen years, and it was in an endeavor to prevent the further influx of members of that race upon the one particular street that certain of its white residents in 1924 undertook the preparation and execution of the restrictive agreement upon which the present suit is based.

Suffice it to say that by such agreement each of the subscribing property owners undertook to create, establish, and attach to his or her lands or interest therein a restriction against the sale, conveyance, leasing, or rental of the property to a Negro or Negroes, which restriction should run with each of the parcels of land described, and should be binding, not only upon the particular subscribing property owner, but also upon his or her heirs, successors, or assigns, and those who might thereafter derive title to any of the property through them. It was further provided that the restriction should be and remain in force for a period of twenty years from the date of the agreement, unless it should be sooner terminated by writing executed and acknowledged by the owners in fee of at least 75% of the total foot frontage of the land of the parties bound by the restriction.

In undertaking to put the plan into effect, a form of agreement was prepared in which it was recited at the outset that the agreement was to be made and entered into by and between the subscribing owners of the land to be affected as the parties of the first part, and the officers of the St. Louis Real Estate Exchange as the parties of the second part.

The agreement then proceeded to identify the subscribers thereto by describing them as the owners of various parcels of land situated in three specifically mentioned city blocks and abutting upon the east and west sides of Vine Grove Avenue, with such parcels owned by the parties of the first part being more particularly described in a table immediately following in which was listed each and every lot situated within the limits of the proposed restricted area, together with the names of the then owner or owners of each of said lots.

Following the preparation of the agreement, those personally in charge of the plan set about to have the instrument signed and acknowledged by the owners of the forty-six pieces of property described therein which would be affected by the restriction in the event that all such owners joined in the execution of the instrument. Apparently the owners of seventeen of the described pieces of property did not sign at all; the owners of eighteen of the pieces signed defectively so as not to be bound by the restriction (or at least defendants so contend); while the owners of the eleven remaining pieces signed properly, including the person through whom defendants subsequently acquired title to the premises which they are now undertaking to rent to Negroes. Thereafter the agreement was filed for record on July 8, 1924, so that if the instrument was executed in a manner to have given it validity, defendants, though concededly without actual notice, are to be charged with constructive notice of the restriction at the time they acquired the property from their predecessor in title.

It appears that about a month before the filing of this suit defendants were notified by the St. Louis Real Estate Exchange that they were violating the restrictive agreement by proposing to rent their property to Negroes and that suit would be filed against them unless they desisted, but that notwithstanding such notification, they proceeded to rent out a portion of the premises to Negroes, whereupon the white tenants at once vacated that portion of the premises theretofore occupied by them.

In their petition, after alleging the execution of the agreement and defendants' violation of the same with the consequent irreparable injury to those other property owners within the covenanted area for whose benefit the suit was brought, plaintiffs prayed that defendants and each of them, and each and every person acting under, through, or by them, be restrained and enjoined from permitting Negroes to occupy the property in question, and that defendants be forthwith compelled to remove the Negroes from the property.

In their answer defendants set up that for want of proper and lawful execution of the restrictive agreement there was no valid and subsisting restriction which forbade the renting of their property to Negroes; that by reason of the fact that their property was situated immediately adjacent to property which had for many years been occupied by Negroes, the same was worthless and without value as rental property unless it could be rented to Negroes; and that the entire neighborhood surrounding Vine Grove Avenue had been so changed by the influx of Negro owners, tenants, and occupants that the same had become a Negro neighborhood, with the result that it would be inequitable and unjust to enforce the terms of the restrictive agreement with respect to defendants' property.

At the conclusion of the case the court entered its decree, finding that the restrictive agreement was "according to its terms and conditions valid and binding as against the parties named therein who properly executed same, except as against the defendants Leonhard Herdt and Johanna Herdt".

It was of course a conceded fact that defendants' grantor, one Weber, had duly signed and acknowledged the restrictive agreement, but notwithstanding this fact the court held that it would be inequitable and unjust to require defendants' property to be restricted against occupancy by Negroes in view of the court's finding that defendants' property was adjacent to and four feet distant from property to the south thereof which had been exclusively occupied by Negroes for the past fifteen years; that the lot immediately adjoining defendants' property on the north was not and never had been restricted against ownership and occupancy by Negroes; that the property immediately east of and directly...