Yeomans v. Herrick
| Decision Date | 06 April 1914 |
| Parties | KATE S. YEOMANS et al., Defendants in Error, v. ROBERT T. HERRICK et al., Plaintiffs in Error |
| Court | Kansas Court of Appeals |
Error to Jackson Circuit Court.--Hon. W. O. Thomas, Judge.
AFFIRMED.
Judgment affirmed.
Geo. B Strother for plaintiffs in error.
Scarritt Scarritt, Jones & Miller and Meredith & Harwood for defendants in error.
--This is a suit in equity to enforce the observance of a building restriction in the title to certain residence property in Kansas City, Missouri, conveyed by Mrs. Yeomans and husband to the plaintiffs in error. The Chancellor found for the complainants and granted the prayer of the bill.
Mrs Yeomans owned a tract of land which she platted into lots, and made the same a finished residence district by grading the streets, putting down granitoid sidewalks, putting in gas mains, sewers, water mains, paving the streets, sodding the terraces, planting park trees, etc. As a part of the dedication expressed on the face of the plat it was stated that all persons who should acquire any land described in the plat should be taken and held to agree and covenant with the owners of said land and their assigns, and each of them, to conform to and observe certain restrictions and stipulations as to the use thereof, among a number of which was one providing that during a period of twenty years "no residence or part thereof exclusive of porches shall be erected on any of said lots within forty feet of the street line upon which the lots so improved front, nor within forty feet of any side street."
A number of the lots in said addition were sold from time to time after the ground was platted and in all of the deeds there was a clause requiring the grantees to observe the covenants and restrictions as to the use of the said lots expressed upon the face of the recorded plat.
On December 28, 1910, Mrs. Yeomans contracted in writing to sell to Robert T. Herrick lot 1, block 10 in said addition, and in said contract was a clause agreeing to conform to and observe the covenants and restrictions as to the use of said land expressed on the face of the recorded plat. The full amount of the purchase money was to be paid on April 1, 1911, at which time Mrs. Yeomans was to make a deed to the lot. This lot fronted east on Main street and ran back west along the north side of Fifty-fifth street, the lot lying in the southeast corner of block 10.
About March 15, 1911, Herrick, who had erected two houses just north of the lot in question, in one of which he was living, began excavating for the foundation of a residence on lot 1 to front on Main street. Before any excavation was made Herrick measured from the north line of the sidewalk on Fifty-fifth street and set the stakes for the foundation. So that Herrick knew the foundation was being put in nearer than forty feet to the street in violation of the covenant in his contract, and at the time it was signed his attention was called to the fact that any residence built thereon had to be forty feet away from the side street.
About the 28th of March, 1911, one of the agents who had sold the property to Herrick noticed that the excavation was being made rather close to the street and called his attention to the fact that the restriction called for forty feet from the side line, and Herrick remarked that he certainly expected to live within the restrictions. The next day the agent spoke to him again about it, and Herrick was asked where the stakes were on the south side, as they had been obliterated by the graders hauling the dirt out. Mr. Herrick did not point out where the south line of the foundation was, and the agent pointed out to him where the property line was and that he must observe the restrictions as to forty feet on the side line. Herrick replied that he knew as much about those matters as the agent did and knew where to measure from. The agent spoke to him several times about being careful to observe the restrictions, before the excavation was completed. On the 28th of March, 1911, the agent, in passing, observed that the foundation wall had been put in, and discovered that its distance from the side street was less than forty feet. Thereupon the agent went to Herrick and told him he was six or seven feet over the line and Herrick replied: "Well, I'll just stand you a lawsuit on that." The next day March 29, 1911, a written notice was served on him that the residence he was erecting on said lot 1 was not forty feet north of the north line of Fifty-fifth street and for him to change the location of the building so as to conform to the building restriction aforesaid.
On April 1, 1911, the remainder of the purchase price became due, and Mr. Herrick paid it and received a deed from Mrs. Yeomans and husband to Viola D. Herrick in accordance with the terms of the contract. This deed contained a covenant to conform to and observe the covenants and restrictions as to the use of said land expressed on the face of said plat.
Thereupon Herrick proceeded with the erection of the foundation walls of the building in disregard of his covenants and the notice given him, and it then being definitely known that he would not obey them, this suit was brought on April 7, 1911, to enjoin the erection of said building and to compel the location thereof further to the north so as to comply with said restriction.
It is complained that the court erred in declining to call a jury. The case was purely one in equity, and therefore, a jury was not demandable as a matter of right. [Snell v. Harrison, 83 Mo. 651; Bronson v. Wanzer, 86 Mo. 408; Davis v. Forman, 229 Mo. 27, 129 S.W. 213.] Consequently no right guaranteed by the Constitution was denied by the failure to call a jury. [Long v. Long, 141 Mo. 352, 44 S.W. 341; Brown v. Fleming, 135 Mo. 597.] Merely inserting in the motion for a new trial that a constitutional question is involved does not raise such question. That is not a mere matter of form. The question must really exist, and if it does not exist, it is not raised. [Brookline Canning Co. v....
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