Toothaker v. Pleasant
| Decision Date | 15 November 1926 |
| Docket Number | No. 25526.,25526. |
| Citation | 288 S.W. 38 |
| Parties | TOOTHAKER et al v. PLEASANT. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court Jackson County; James H. Austin, Judge.
Action in equity by Marie C. Toothaker and another against Jeffry Pleasant. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with directions.
Cleary & Barnett and John R. James, all of Kansas City, for appellant.
G. C. Weatherby and Roy N. Devault, both of Kansas City, for respondents.
Action in equity to enjoin defendant (appellant here), who is a negro woman, from occupying certain improved real property in Kansas City, Mo., owned by her and described as the west 4½ feet of lots 3 and 4, block 2, in Dalcoulin, a platted addition in said city, and from selling, renting, or leasing the same to negroes, or otherwise permitting the use or occupancy of said property by negroes, until September 28, 1930. Plaintiffs (respondents here) are white persons and are the record owners of the east 99½ feet (except 5 feet taken and used for street purposes) of said lots 3 and 4, block 2, in Dalcoulin addition, adjacent to defendant's property and lying immediately east thereof. A temporary injunction issued, and, upon final hearing on the merits, a decree was entered by which the injunction was made permanent and a monetary judgment was awarded plaintiffs against defendant in the sum of $776.25 for alleged loss of rentals from their property. Defendant, after the customary preliminary steps, has appealed to this court.
The salient facts, as gathered from the record before us, are these: Lots 3 and 4, block 2, in Dalcoulin addition, as originally platted, had a length or depth of 142 feet. Subsequently, the east 5 feet of said lots was taken or dedicated for public use as a part of Brooklyn avenue in said city. The lots in question are situate at the northwest corner of Brooklyn and Howard avenues. Brooklyn avenue is a north and south street, and Howard avenue is an east and west street. The width, or short frontage, of said lots is an Brooklyn avenue, while the depth, or long frontage, or the lots is on Howard avenue. The lots in question occupy the southeast corner of a rectangular city block, bounded on the east by Brooklyn avenue, on the south by Howard avenue, on the west by Garfield avenue, and on the north by Twenty-Fourth street.
The entire tract, that is, all of said lots 3 and 4 was originally owned by one Walter M. Hall. On September 28, 1915, said Walter M. Hall and his wife, Anna C. Hall, conveyed the whole of said lots, by warranty deed dated the same day, to one Fry Myers for a valuable consideration expressed in said deed. The deed from Hall and wife to Myers contained this covenant or recital:
"As a part of the consideration the grantee for himself and his successors and assigns and grantees agree not to sell or assign or rent any of said property to a negro for a period at least of fifteen years from this date."
This action hinges upon the quoted recital or covenant of said deed, which was duly recorded in the recorder of deed's office at Kansas City, Jackson county, Mo., on October 26, 1915.
On September 27, 1915, Fay Myers executed and delivered a deed of trust, whereby the east 94½ feet of said lots 3 and 4 was conveyed to Joseph F. Keirnan, trustee for the National Association of Letter Carriers of United States of America, a corporation, to secure to said corporation the payment of certain promissory notes therein described. This deed of trust makes no reference to the restrictive covenant or recital contained in the warranty deed from Hall and wife to Myers. Said deed of trust was also duly recorded on October 26, 1915.
On September 28, 1915, Fay Myers conveyed the whole of said two lots as one tract or parcel of land to one Bessie L. Kinley by warranty deed, which deed recites that "this conveyance Is made subject to all incumbrances of record affecting said property," but otherwise the deed makes no reference to said restrictive covenant contained in the Hall deed. This deed was also duly recorded on October 26, 1915.
At the time Walter M. Hall owned the entire property, that is, all of said lots 3 and 4, and before said property was conveyed to Myers and by Myers to Bessie L. Kinley, it was improved with a large frame house, which house faced or fronted east upon Brooklyn avenue. After Bessie L. Kinley acquired title to the entire property, consisting of the whole of said two platted lots, she moved the frame house onto the west 42½ feet of said two lots, so that the house then faced or fronted south on Howard avenue. Upon the east 99½ feet of said two lots, Bessie L. Kinley erected a three-story brick apartment building, containing twelve separate three-room apartments, three garages, and a basement, fronting east on Brooklyn avenue.
Thereafter, the deed of trust executed by Fay Myers on September 27, 1915, was foreclosed, and the property conveyed thereby, viz., the east 94½ feet of said lots 3 and 4, was sold at a trustee's sale held on October 5, 1917; the purchaser at such foreclosure sale being the beneficiary named in said deed of trust, said National Association of Letter Carriers of United States of America, subject to the right of said Bessie L. Kinley to redeem said property within the one year period prescribed by statute. Rev. Stat. 1919, § 2222. Bessie L. Kinley never exercised her right of redemption within the statutory period aforesaid, and Joseph F. Keirnan, as trustee, on, November 29, 1918, executed and delivered a trustee's deed to the said purchaser at the foreclosure sale, which trustee's deed was duly recorded on December 5, 1918. The trustee's deed makes no reference to the restrictive covenant contained in the deed from Hall and wife to Myers. Subsequently,. in order to correct the description of the property intended to be conveyed by the said deed of trust and trustee's deed, Bessie L. Kinley and her husband, on September 20, 1920, executed and delivered a quitclaim deed to National Association of Letter Carriers of United States of America, the purchaser at the trustee's sale, conveying to said corporation all of the east 99½ feet of lots 3 and 4, block 2, in Dalcoulin addition, except the east 5 feet of said lots in Brooklyn avenue. The said quitclaim deed recites that it is made "to correct a misdescription in the amount of ground originally conveyed to the National Letter Carriers of the United States of America, under a deed of trust by the grantors herein and later by a trustee's deed to the same property; it being the intention of the grantors herein to deed hot only the land described in said deed of trust and trustee's deed, but an additional 5 feet of ground heretofore omitted from said instruments, making the land conveyed the east 99½ feet of lots 3 and 4, block 2, Dalcoulin, instead of the east 94½ feet, as described in instruments above referred to." The title to the east 99½ feet of said lots 3 and 4 subsequently passed by mesne conveyances to plaintiffs, who acquired title thereto on April 8, 1920. None of said mesne conveyances makes reference to the restrictive covenant in the Hall deed.
On March 26, 1918, Bessie L. Kinley and husband conveyed the west 42½ feet of lots 3 and 4, block 2, in Dalcoulin addition, to one James L. Donnell by warranty deed, which was duly recorded on April 1, 1918. Said deed contains the recital that "this deed is made subject to all incumbrances of record affecting said above described real estate," but otherwise said deed makes no reference to the restrictive covenant contained in the Hall deed. The title to the west 42½ feet of said lots 3 and 4 subsequently passed by mesne conveyances to defendant, Jeffry Pleasant, who acquired title thereto on September 23, 1921. None of said mesne conveyances makes reference to the restrictive covenant in the Hall deed.
The record before us is silent as to whether Walter M. Hall, the original owner of the whole of said lots 3 and 4, and the grantor in the deed to Fay Myers containing the restrictive covenant, owned or was interested in any other property or tract of land in the city block in which said lots 3 and 4 were situate, or in the immediate vicinity of said lots, at the time he conveyed said lots to Fay Myers.
It was shown in evidence by defendant that, at the time of the institution of the instant suit and prior thereto, most, if not all, of the houses located within said city block, with the exception of those houses facing or fronting on Brooklyn avenue, were owned and occupied by negroes.. All of the houses fronting on Brooklyn avenue were owned and occupied by white persons. In other words, it appears that approximately the west one-half of the city block in question was inhabited by negroes, while approximately the east one-half of said city block, fronting on Brooklyn avenue, was inhabited by white persons. It is also shown by the record that a large negro settlement extends several blocks north and south of Howard avenue, and several blocks west of Brooklyn avenue, and that the houses within said area are mostly occupied by negroes, except those houses fronting or facing east on Brooklyn avenue, which houses are occupied by white persons. In other words, the record indicates beyond serious dispute that plaintiffs' property is almost immediately contiguous to a large negro settlement, the area of which extends over several city blocks lying to the west, north, and south of plaintiff's property, but which negro settlement does not embrace the properties or lots immediately fronting and abutting on Brooklyn avenue.
Plaintiffs' evidence tended to show that all of the twelve apartments in the apartment building located upon the east 99½ feet of said lots 3 and 4 were occupied by white tenants in September, 1921, when defendant acquired title to the west 42½ feet of said lots; that negroes (tenants of defendant negro owner) first occupied the...
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