Tower v. Compton Hill Imp. Co.

• Decision Date: 21 December 1905
• Citation: 91 S.W. 104,192 Mo. 379
• Parties: TOWER et al. v. COMPTON HILL IMP. CO.
• Court: Missouri Supreme Court

91 S.W. 104

192 Mo. 379

TOWER et al. v. COMPTON HILL IMP. CO.

Supreme Court of Missouri, Division No. 1.

December 21, 1905.

1. ELECTION OF REMEDIES — CONVEYANCE — BREACH OF CONDITION.

Where a conveyance provided that, on breach by the grantee of a condition as to the platting of the property conveyed, the same should revert to the grantor, who agreed to hold the remainder of his property in the same block subject to the same condition, and on breach of the condition by the grantee the grantor elected to treat the whole agreement as rescinded, and proceeded to replat his own property contrary to the condition, he was thereby precluded from afterwards bringing ejectment against the grantee to recover the premises.

2. LIMITATION OF ACTIONS—RECOVERY OF REAL PROPERTY—PENDENCY OF LEGAL PROCEEDINGS.

Under Rev. St. 1899, § 4262, requiring actions for the recovery of real property to be brought within 10 years, etc., where, on breach by the grantee of a condition in a conveyance as to the platting of the property, the grantor failed to bring ejectment to recover the property, as he was entitled to do, but thereafter proceeded to plat his own property, which was also subject to the condition, he was not entitled to wait until the determination of an injunction suit brought against him by the grantee to enjoin such platting in order to extend the time for bringing his action of ejectment.

3. SAME—WAIVER.

Where a conveyance provided that on breach by the grantee of certain conditions as to the platting of the property the same should revert to the grantor, the latter agreeing to hold the remainder of his own property in the same block subject to the same condition, the conveyance also prohibiting the erection of certain buildings on the granted property, and after breach by the grantee of both conditions the grantor also violated the condition as to platting, and in an injunction suit by the grantee to restrain such platting by the grantor relied on the breach of the first condition by the grantee, the grantor could not successfully maintain that he had waived the first breach, and insist on the second breach of the condition, which was of later occurrence, in order to avoid the effect of the statute of limitations on his right of action under the conveyance.

Appeal from St. Louis Circuit Court; Franklin Ferris, Judge.

Action by George F. Tower and others against the Compton Hill Improvement Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Edward S. Robert and Douglas W. Robert, for appellants. Kehr & Tittman, for respondent.

MARSHALL, J.

This is an action of ejectment, instituted in the circuit court of the city of St. Louis, on the 18th of January, 1901, by the executors and devisees under the will of George F. Tower, deceased, to recover a certain tract of land in city block No. 1366, having a front of 100 feet on the east line of Grand avenue by a depth of 295 feet eastwardly, except 70 feet on the rear of said lot, which has been thrown into lots 3 and 4 of Compton Heights. The ouster is laid as of the 18th of January, 1901. The case was tried by the court without a jury, and resulted in a judgment for the defendant, from which the plaintiffs appealed.

The Issues.

The petition is in the usual form in such cases. The answer admits the corporate character of the defendant and that it is in possession of the premises, and then denies every other allegation in the petition not specifically admitted. It then specially pleads: That the land sought to be recovered is the south 100 feet of a large tract of 610 feet in city block No. 1366 and fronting on Grand avenue, which belonged in 1889 to George F. Tower. That on the 4th of December, 1889, Tower conveyed the 100 feet to Nolker in consideration of $9,000, retaining the remaining 510 feet, and imposed upon both tracts certain restrictions with reference to subdividing and improving the respective parts, which will be more particularly referred to hereinafter. That on the 7th of January, 1890, the defendant became the owner of the premises by mesne conveyances from Nolker; and on the 8th of July, 1890, it subdivided the lot so purchased from Tower, together with other property owned by the defendant, adjoining the same, into what is known as "Compton Heights"; and on the 8th of July, 1890, it filed a plat of that subdivision in the recorder's office of the city of St. Louis, which showed the rear end of the lot acquired from Tower to be incorporated in lots 3 and 4 of that subdivision—of all of which Tower had notice and knowledge. That immediately upon filing said plat the defendant offered for sale the lots set out and described in the subdivision, and on the 6th of August defendant sold lot No. 4, which comprised, as aforesaid, a part of the eastern end of the lot acquired from Tower, to Phillippine Tinker, who immediately improved said lot by building thereon, of all of which plaintiffs had knowledge, and in which they acquiesced. And therefore defendant says the plaintiffs are estopped to assert any violation of the covenants in the deed from Tower to Nolker. The answer further specially pleads the ten-year statute of limitations. The answer further pleads that, after the defendant had so subdivided the lot acquired from Tower and had sold it, Tower subdivided the remaining 510 feet into smaller lots and advertised the same for sale, and that he thereby elected between the remedies afforded by law for the violation, if any, of the terms of the conveyance to Nolker, and hence cannot maintain this action. The answer further specially pleads that on the 22d of July, 1893, the defendant instituted a suit in equity to restrain Tower from so subdividing the remaining 510 feet of the ground; that Tower defended said suit on the ground that the defendant herein had previously, as aforesaid, violated the terms of the deed to Nolker, and said defense was sustained by the lower court and the bill dismissed, and the judgment of the lower court was affirmed by this court; and therefore the defendant again pleads that the plaintiffs made an election of remedies. The reply pleads that the deed from Tower to Nolker contained an express provision of re-entry, and was not simply a covenant; admits that the defendant subdivided the 100 feet acquired from Tower, but denies that Tower knew that the same was offered for sale; denies that the improvements on lot 4 of Compton Heights addition were begun or completed in the year 1890, and further denies that the stable erected thereon cost $10,000; denies that Tower had knowledge of the so-called improvements or that he acquiesced therein; avers that plaintiffs acquired the property from Tower by fraud, and denies that Tower or the plaintiffs are estopped from maintaining this action; denies the defense by limitation set up, and also that the plaintiffs have been guilty of any laches; admits that in 1893 Tower subdivided the remaining 510 feet, and avers that he had a right so to do, because defendant had violated the terms in the deed, but denies that the defendant is thereby relieved from the forfeiture under the other terms of the deed; and denies that plaintiffs have elected between the remedies afforded by law.

The case made is this: Prior to December 10, 1889, George F. Tower owned a tract or land in city block No. 1366, having a front of 610 feet on the east side of Grand avenue, and extending eastwardly 295 feet. The defendant corporation owned the land immediately south thereof on the east side of Grand avenue, together with a large amount of other property extending eastwardly. It was engaged in the establishment of a subdivision to be called "Compton Heights," which was intended as a choice residence district. One Haarstick was the president of the company, and Julius Pitzman was the manager. Nolker was a director in the company. The defendant desired to sell to Nolker the lot lying immediately south of the Tower property on the east side of Grand avenue and on the north side of Longfellow Boulevard. The lot then owned by the defendant had only a front of 118 feet on Grand avenue. Nolker wanted a lot 200 feet square. For the purpose of giving him a lot of that size the defendant procured through Pitzman a conveyance from Tower of the property here in controversy, being 100 feet immediately north of the 118 feet so owned by the defendant. It was designed that Nolker would erect a handsome residence on the land; but, as his plans were not then fully completed, the defendant agreed with him that if he did not desire to keep the property it would take it off his hand at the price he paid for it, and subsequently it did so. Tower conveyed the property to Nolker by deed, which contained the following provision: "Provided, however, and this conveyance is upon condition, that the grantee herein shall not, nor shall his heirs or assigns, erect or allow to be erected on the premises above described, any dwelling nearer than fifty feet to the east line of Grand avenue. The grantee shall not, nor shall his heirs nor assigns, erect or put upon the Grand avenue front of the premises hereby conveyed a building of any kind, save and except one dwelling house and appurtenances, and such dwelling house shall not cost less than $7,500. The grantee shall not, nor shall his heirs or assigns, erect or permit any business establishment to be erected on the premises hereby conveyed, the property being conveyed for residence purposes only, nor shall he or they create or permit any nuisance to be created or maintained on said premises or any part thereof. In the event of the breach of any of the foregoing conditions, the estate hereby granted and conveyed shall end and the title to the property aforesaid shall forthwith revert to the grantors herein, their heirs and legal representatives. And in consideration of the acceptance of the foregoing conditions by the grantee, and of the purchase money aforesaid, the said...