Milligan v. Balson

264 S.W. 73, 214 Mo. App. 627, 1924 Mo. App. LEXIS 36

• Court: Missouri Court of Appeals
• Decided: May 6, 1924
• Status: Published

Opinions

^* Headnote 1. Deeds, 18 C.J., section 448; 2. Deeds, 18 C.J., sections 203, 329; 3. Deeds, 18 C.J., sections 448, 460; 4. Deeds, 18 C.J., section 451; 5. Deeds, 18 C.J., section 62; 6. Deeds, 18 C.J., section 460; 7. Vendor and Purchaser, 39 Cyc, p. 1731; 8. Deeds, 18 C.J., sections 459, 460; 9. Injunctions, 32 C.J., section 581; 10. Injunctions, 32 C.J., section 326. This is a suit by injunction to restrain the defendant, appellant here, from erecting, on premises adjoining those of the plaintiff, a building within twenty feet south of the south line of Delmar avenue, in the city of St. Louis, Missouri. From a judgment granting the relief prayed for defendant appeals.

It appears from the pleadings and the undisputed evidence that Jeanette F. Morton, the St. Louis Union Trust Company and George O. Carpenter, Jr., being the owners, in fee simple, of lots Nos. 32 to 45, inclusive, in block No. 5051a of the city of St. Louis, Missouri, and all fronting on the south line of Delmar avenue, conveyed on the 6th day of May, 1904, the eastern thirty-three feet of said lot No. 45, to George H. Hazenstab and Bettie C. Hazenstab, his wife.

Thereafter, and before the 22nd day of October, 1904, the said George H. Hazenstab erected a brick flat on the lot thus acquired, fronting on Delmar avenue, and so located it that the front thereof was on a line parallel with and twenty feet south of the south line of said avenue.

On the 22nd day of October, 1904, Jeanette F. Morton, the St. Louis Union Trust Company and George O. Carpenter, Jr., conveyed to George H. and Minnie Brueggemann the balance of said lot No. 45, except the western one and five-eighths (1-5/8') feet thereof. The deed to Brueggemann and wife contained the statutory words of "grant, bargain and sell" and the following habendum clause:

"To have and to hold the same, together with all rights, immunities, privileges and appurtenances to the same belonging, unto the said parties of the second part, their heirs and assigns forever, the said grantors hereby covenanting that they will warrant and defend the title to the property hereby conveyed unto the said parties of the second part and to their heirs and assigns forever, against the lawful claims and demands of all persons whomsoever, except as to taxes for the year 1905, and subsequent years, and an easement over the southern five (5') feet of the property above described granted to the city of St. Louis for sewer purposes, and also a building line to beobserved by the grantees herein located at an equal distance fromDelmar boulevard as that observed by the owners of the lotadjoining on the east, to all of which this conveyance is madesubject, and to which the remainder of the property adjoining onthe west and owned by said grantors is also to be conveyedsubject, whenever sold." (Italics ours.)

Thereafter, on the 27th day of April, 1905, Jeanette F. Morton, the St. Louis Union Trust Company and George O. Carpenter, Jr., conveyed lots Nos. 40 and 41 of said block No. 5051a, of the city of St. Louis, Missouri, to plaintiff, Bob Milligan; and in said deed of conveyance the said grantors inserted restrictive covenants, as to the use of said real estate, which are contained in the habendum clause and are as follows:

"Save and excepting however as to the taxes for the year 1906, and subsequent years, an easement over the southern five (5') feet of the property above described granted to the city of St. Louis, Missouri, for sewer purposes; and also a building line tobe observed by the grantee herein located, at a distance oftwenty (20') feet south of the south line of Delmar boulevard, toall of which this conveyance is made subject." (Italics ours.)

It also appears that on November 14, 1905, Jeanette F. Morton, the St. Louis Union Trust Company and George O. Carpenter, Jr., conveyed to Georgia Realty Company lots Nos. 32, 33, 34, 35, 36, 37, 38, 39, 42, 43, 44, and the west one and five-eighths inches (1-5/8") of lot No. 45 of city block 5051a of the city of St. Louis. The deed contained the same restrictive covenants, as to the use of the real estate conveyed, as are contained in said deed of said grantors to plaintiff.

The defendant acquired lots Nos. 42, 43, 44, and the western 1-5/8 inches of lot No. 45 of said block No. 5051a of the city of St. Louis, Missouri, by mesne conveyances from the Georgia Realty Company, which purchased from said common grantors. All of the mesne conveyances down to Frances M. Hughes, from whom defendant acquired said lots, contain, in the habendum clause, the identical language, as to the use of the lots conveyed, as is contained in the said deed of Morton and others to the Georgia Realty Company. Defendant's deed from Hughes is dated August 7, 1919, and contains the following restrictive clause:

"The above described property is conveyed subject to a building line if any."

It also appears that on all the lots from 32 to 45, inclusive excepting those conveyed to the defendant, the owners thereof have erected buildings, none of which are nearer to the south line of Delmar avenue than twenty feet. All of said lots constitute a contiguous body of ground, with an aggregate width east and west, along the south line of Delmar avenue, of seven hundred and twenty-five to seven hundred and forty feet, and run, in the increasing numerical order, from lot 32 on the west to lot 45 on the east, inclusive.

The several deeds heretofore mentioned were recorded in due course in the recorder's office of the city of St. Louis, Missouri.

It was admitted by the defendant at the trial that he was, at the time of the institution of this suit, proceeding to erect a building, extending to the sidewalk on Delmar avenue, on his said lots and in violation of the building line twenty feet south of the south line of Delmar avenue, if any such building line existed.

The other pertinent facts will sufficiently appear in the course of the discussion of the legal questions raised on this appeal.

The defendant sets up to the action substantially the following defenses:

(1) That the several deeds, hereinbefore mentioned, do not operate to impose a building line upon the lots belonging to the defendant.

(2) That plaintiff has no right to enforce the observance of the restriction in question against defendant, even if such existed.

(3) That the building line restriction in question, if any such existed, is no longer applicable to the existing state of things by reason of the change in the character of the locality, at and about said lots, from a residence district to a commercial district, and that its enforcement would be inequitable and oppressive.

(4) That the plaintiff is estopped by his laches from enforcing the restriction.

In support of the first defense set up in the action, it is urged that the expressions concerning a building line restriction, because laid only in the habendum clauses of the deeds, do not create and establish a restriction, but merely save and except such building line, if such encumbrance existed, from the operation of the covenants of warranty previously set forth in the deeds.

Whether the several deeds create or impose a building line restriction upon the lots in question, must be ascertained from the four corners of the instruments. Under the modern rule, which prevails in this State, in construing a deed the court will ignore the technical distinctions and priorities between the old common-law subdivisions of a deed and seek the grantor's manifest intention as gleaned from the whole instrument; and if that intention is expressed in the habendum clause it is entitled to as much weight as if it had been expressed in the premises. In passing on the question, MARSHALL, J., in Utter v. Sidman, 170 Mo. l.c. 294, 70 S.W. 702, tersely states said rule as follows: "The intention of the grantor, as gathered from the four corners of the instrument, is now the pole star of construction. That intention may be expressed anywhere in the instrument, and in any words, the simpler and plainer the better, that will impart it, and the court will enforce it no matter in what part of the instrument it is found." [See, also, Welch v. Finley,281 Mo. 684, l.c. 691, 219 S.W. 897; Kitchen v. Hawley, 150 Mo. App. 497, l.c. 503, 131 S.W. 142; Nations v. Spense, 235 S.W. 1065; Willis v. Robinson, 291 Mo. 650, l.c. 668, 237 S.W. 1030; Garrett v. Wiltse, 252 Mo. 699, l.c. 707, 161 S.W. 694.]

It is next contended that the language, relating to a building line restriction, contained in the Brueggemann deed, or in the deed to plaintiff, or in the deed to the Georgia Realty Company, does not express a present intention, on the part of the common grantors, to impose a building line restriction against the property conveyed. Whether said deeds express such an intention must be determined from the language employed, considered in connection with the situation of the property affected and the circumstances existing at the time the deeds were executed.

In order to fully understand the situation of the property affected and the circumstances existing at the time the several deeds were executed, it may be well to further note that it does not appear that the owners of lots 32 to 45, inclusive, owned any other property in said block; and that said lot 45 is bounded on the east by Academy Way, which separates it from lot 46, the latter lot being the east side of said walk.

It will be noted that the grantors in the Brueggemann, Milligan, and Georgia Realty Company deeds are the common source of title of both plaintiff and defendant. These deeds include all the lots owned by said grantors in block No. 5051a of the city of St. Louis, Missouri, except the eastern thirty-three feet of lot 45, which was the easternmost portion of the whole tract of land. A building line restriction, against the lots conveyed, is also written in all of them.

In the Brueggemann deed the grantors not only imposed a building line restriction upon the lot sold therein, but bound themselves that said restriction should also be imposed upon the remaining lots, adjoining on the west and owned by them, and that such remaining lots should be conveyed subject to said restriction whenever sold. It is clear that, by the restriction imposed upon the use of the remaining lots owned by them, the grantors meant to impress a uniform plan for a building line against all said remaining lots, and intended that said covenant should inure to the benefit of all subsequent purchasers of same. This intention was carried out by the grantors in their deed to the plaintiff, conveying lots Nos. 40 and 41, and in their deed to the Georgia Realty Company conveying the balance of said lots. These deeds also impressed the lots conveyed therein with the same restriction impressed by the Brueggemann deed.

Counsel for the defendant contend, however, that "the language used in the Brueggemann deed is too vague, indefinite and uncertain and fails to contain any valid description of any property sought to be burdened with said alleged covenants and restrictions with a twenty foot building line."

In support of this contention it is argued that the language "and also a building line to be observed by the grantees herein located at an equal distance from Delmar boulevard as thatobserved by the owners on the lot adjoining on the east, to all of which this conveyance is made subject," referred to lot 46. As to this contention the record shows lot 46 had observed no building line, because no building had been erected thereon at the time the Brueggemann deed was executed. The record further shows that lot 46 did not adjoin the lot conveyed in the Brueggemann deed at all, but was separated therefrom by Academy Walk. It further appears, from a reading of the Brueggemann deed, that the lot therein conveyed is described as being bounded "onthe east by property recently conveyed to H. Hazenstab and wifeby the grantors herein;" the east part of lot 45, conveyed to Hazenstab, had observed a building line. It is obvious that the said language of the deed can not be construed to refer to lot 46.

It is further urged that the description in the Brueggemann deed contained in the words "and to which the remainder of theproperty adjoining on the west and owned by said grantors is alsoto be conveyed subject whenever sold" fails to contain an accurate and definite description of the property to be impressed with the building line restriction, and therefore does not operate to create such a restriction. We cannot give our assent to this contention. It is admitted that the grantors in the Brueggemann deed, at the time of its execution, were the record owners in fee of lots 32 to 44, inclusive, and the Western one and five-eighths inches of lot 45, and that these lots comprised the remainder of the property adjoining on the west and so owned by said grantors. From this description the identity of the lots, intended to be impressed with the servitude, can be established. [18 Corpus Juris, sec. 62, p. 180.]

Plaintiff, having purchased his lots subsequent to the execution and recording of the Brueggemann deed, paid his consideration therefor in the expectation of the benefit to be derived to the lots bought from the observance of the restrictions which his grantors imposed upon the use of the lots in question. He can, therefore, enforce the restrictive covenant against said lots. [King v. Union Trust Company, 226 Mo. 351, 126 S.W. 415; Coughlin v. Barker,46 Mo. App. 54; Doerr v. Cobbs, 146 Mo. App. 342, 123 S.W. 547; Meriwether v. Joy, 85 Mo. App. 634; Fete v. Foerstel,159 Mo. App. 75, 139 S.W. 820; Roberts v. Scull, 43 A. 583; Berry on Restrictions on Use of Real Property, sec. 307, p. 350, sec. 332, p. 402, sec. 334, p. 413.]

Counsel for the defendant further contend that the defendant is not charged with constructive notice of the restriction contained in the Brueggemann deed. If we are right in our holding that said deed, which was duly recorded, affected or encumbered the common grantor's title to the remaining lots owned by them, then it follows that defendant, who was a subsequent purchaser of said lots, is charged with constructive notice of the restrictions therein imposed.

An inspection of his deed to his lots, executed by his grantor Hughes, would have disclosed the fact that said lots were burdened with a building line encumbered, if any, for his deed was so written. This pregnant warning would have suggested to a prudent man to inquire further, by a search of the records, whether or not an encumbrance had been placed on his lots. Such an examination would have disclosed the encumbrance imposed on his lots by the deeds of the common grantor of plaintiff and defendant to the Georgia Realty Company, and to Brueggemann, and that the encumbrances therein imposed inured to the benefit, of the adjoining lots owned by the plaintiff. We rule this point against the defendant; and as authority for this holding we cite King v. Union Trust Company, supra, where the question is ably and thoroughly considered, and the point ruled adversely to defendant's contention.

As to the second defense raised to this action, this is bottomed on the rule that "a prior purchaser from the original owner cannot enforce a restriction imposed by the latter upon a lot subsequently conveyed; and counsel cites in support thereof Doerr v. Cobbs, 146 Mo. App. 342, 123 S.W. 547.

The Doerr case was one where the holder of an earlier deed sought the benefit of the restrictions in the later deed. This is not the case in the suit at bar. However, the rule invoked has no application where, as here, in the prior deed there is a grant of a right in the residue of the land retained by the vendor, or a stipulation that the restrictions put upon the lot sold by the prior deed should also be imposed upon the remaining property when sales should be made to subsequent purchasers, or other indications that all the lots were sold as parts of a uniform building scheme. [Roberts v. Scull, supra; King v. Union Trust Company, 226 Mo. 351, 126 S.W. 415; Coughlin v. Barker,46 Mo. App. 54.] This exception is fully recognized in the Doerr case.

As to the third defense set up in the action. We do not think there has been such a change in the character of the property affected by said restriction, or that the condition of the property by which the premises are surrounded has been so altered, that the restrictions imposed are no longer applicable to the existing state of things; nor is there any evidence that there has been an abandonment of the plan of the building line restriction by the owners of any of the lots affected. Therefore, the relief sought is not inequitable. [See, also, Spahr v. Cape,143 Mo. App. 114, l.c. 129, 122 S.W. 379; Thompson v. Langan,172 Mo. App. 64, l.c. 83, 154 S.W. 808; Noel v. Hill,158 Mo. App. 426, l.c. 446, 138 S.W. 364; Koehler v. Rowland,275 Mo. 573 l.c. 587, 205 S.W. 217.]

Coming now to the last defense interposed to this action, the evidence shows that the plaintiff notified the defendant when he started to erect the walls of his building within the twenty foot line, and informed him that if he disregarded the building line he would take steps to enjoin him; and that after being so notified the defendant nevertheless continued the work until restrained by the process of injunction. There is nothing in the evidence tending to show that defendant was injured because of any laches of plaintiff, or that any inaction, on the part of the plaintiff, induced the defendant to do the thing complained of and against which plaintiff seeks relief.

It follows that the judgment should be affirmed. The Commissioner so recommends.