Kuhn v. Saum , 316 Mo. 805 ( 1927 )

This case comes to the writer for opinion on re-assignment. It is a suit in equity to enjoin the violation of alleged building restrictions. There is but little controversy as to the material facts. Plaintiff was the owner in fee of lot 27, in city block 4949, in the city of St. Louis; her title was acquired through a deed from the St. Louis Improvement Company, a corporation, dated August 27, 1894. That deed recited that the conveyance thereby made was subject to certain "reservations, restrictions and conditions," which were specifically set out. The "restrictions" took the form of covenants on the part of the grantee for himself and every person claiming under him. So far as pertinent here they were: that he would not erect upon said premises any building designed or intended to be used for any purpose or purposes except as a private residence; and that the front of any building erected should be not less than fifteen feet distant from the line of the street on which the lot fronts. The recital of the reservations, restrictions and conditions concluded as follows:

"In consideration that the foregoing conditions and covenants are made for the mutual benefit of all parties purchasing lots by similar conveyances from this grantor, it is expressly agreed, and this conveyance is upon the express condition, that it shall be lawful for any such person or persons owning any lots or part or parts of lots in Tyler Place Addition, by purchase from this grantor, or any or either of them, to prosecute any proceeding or proceedings at law, or in equity against any person or persons infringing or attempting to infringe, or omitting to perform or to keep or observe or abide by said provision or provisions, for the purpose of preventing them from so doing, or collecting damages for such infringement or omission, or both."

The territory which is subject to the restrictions just mentioned comprises, according to the plaintiff's contention, all of the lots in city blocks 4948, 4949, 4950 and 4951, which front on Castleman Avenue. That street runs east and west, blocks 4949 and 4950 lie on the north side, and blocks 4948 and 4951 on the south side. Defendants own lot 14 in city block 4948 and are intending to erect thereon a two-story building the front of which will be on a line ten feet from the line of the street (Castleman Avenue) on which the lot fronts. And it is designed to be used for stores on the first floor, and offices or living quarters on the second. Defendants say that their said lot is not subject to the restrictions enumerated in the deed to plaintiff.

In the year 1890 the St. Louis Improvement Company owned all of the lots first mentioned, excepting only lot 23 in block 4951. Each of the lots had a frontage of fifty feet, on Castleman Avenue, and all were of a uniform depth. In the deed first used by the company in conveying the lots the reservations, restrictions and conditions heretofore referred to were printed. A majority of the lots, perhaps, were conveyed by such deeds. After a while the use of the form deed was discontinued, and in the deeds thereafter made the substance of the restrictions as to the building line and use of the premises was written in, or else the restrictions contained in one of the recorded printed deeds were incorporated by reference. All of the deeds made by the St. Louis Improvement Company in the conveyance of the lots, except one presently to be noted, contained the restrictions as to use and building line in some form. On January 4, 1922, the Company still owned five of the lots. On that date it conveyed these lots: 14 in block 4948 and 15, 19, 21 and 22 in block 4949, to Louise R. Conrades. In the deed effecting that conveyance the only mention of restrictions was this: "Subject to restrictions of record." Mrs. Conrades conveyed the five lots to the Wagner Construction Company by deed, dated February 21, 1922, which contained no reference to restrictions. On August 7, 1922, the Wagner Construction Company by deed of that date conveyed said lots 14 and 15 to defendants, "subject to conditions and restrictions now of record on said property."

In order to determine "the restrictions of record" as to the five lots last mentioned, it is necessary to retrace the history of the title prior to its acquisition by the St. Louis Improvement Company. The latter acquired by mesne conveyance the title to all of the lots fronting on Castleman Avenue in the four city blocks, except lot 23 in block 4951, from the Western Investment Improvement Company. All of the deeds by which the latter company conveyed the lots contained a covenant on the part of the grantee as follows;

"No soap-boiling establishment, chemical works, slaughterhouse, gas factory, dramshop or any nuisance to be placed upon, erected, maintained, carried on or permitted on any lot or subdivision or part thereof, and upon further condition that neither grantee, his, her or their heirs or assigns, or legal representatives, shall ever erect or build any house on said premises less than two stories in height and of . . . brick or of stone material or at a less distance than ten feet from the . . . line of Castleman Avenue."

When defendants were negotiating the purchase of their lots they caused the title to be examined by the Title Guaranty Trust Company of the city of St. Louis. The certificate furnished them by that company recited: "Conditions and restrictions according to deed recorded in book 952 page 480." The deed referred to was one containing the restrictions last set out.

In the trial of the cause in the circuit court plaintiff introduced oral evidence tending to show that thirty of the lots were sold by the St. Louis Improvement Company at auction, May 28, 1910; the sale was previously advertised by hand-bills which proclaimed: "Charming Home Sites Restricted for a Life-long Home;" and that at such sale it was announced that the lots would be sold subject to the following restrictions:

"No nuisance; no flats or business buildings; only one private residence, of brick or stone, on each 50-foot lot, to cost not less than $5,000 including outhouses; all residences must conform strictly to the building line as established by the buildings now erected on Castleman Avenue in each block, that line having been specified in former deeds as being 15 feet back of the front line of the lot or 27 feet back of the curb and street line."

It was further shown that the improvements on all of the lots, other than the one contemplated by defendants, conformed to the restrictions set forth in plaintiff's deed.

The trial court found the issues for plaintiff and entered a decree perpetually enjoining the defendants from erecting on their lots or either of them, "any buildings designed or intended for business purposes, or any building encroaching within fifteen feet of the street line." From that decree defendants prosecute this appeal.

The restrictions set out in the deed from the St. Louis Improvement Company to respondent (the ones said to be violated by appellants) are in substance that no building designed for any purpose other than a private residence shall be erected on the lot, and the front of any building erected thereon shall be at least fifteen feet distant from the street line. Whether appellants' lot is subject to those restrictions may be determined by a process of elimination. Pursuant to that method we look first to the deed from the St. Louis Improvement Company to appellants' grantor. We find that that deed merely recites that the property is conveyed "subject to restrictions of record." Now there was of record at that time a deed in the chain of title to said lot 14, and only one, which imposed restrictions, and that was the deed from the Western Investment Improvement Company to the St. Louis Improvement Company's grantor. Those restrictions (the portion of the deed embodying them has heretofore been quoted) fixed the building line at ten feet from the street and permitted the construction of buildings for business purposes. It conclusively appears therefore that neither the deed to appellants nor any other in their chain of title imposes upon their lot the restrictions contended for by respondent.

The next inquiry is whether the deed from the St. Louis Improvement Company to respondent imposed a negative easement in favor of the grantee on the remaining lands of the grantor, which included the lot subsequently purchased by appellants. In this connection it will be noted that all the covenants in that deed which may be termed restrictive were made on the part of the grantee. The grantor made none. That fact standing alone shows prima-facie that the restrictions were imposed solely for the benefit of the grantor's remaining land. Consequently, if the grantor made use of his remaining land which did not conform to such restrictions, his grantee had no ground of complaint. And if the grantee could not compel his grantor to observe the restrictions, he could not compel a subsequent grantee to do so. [Beattie v. Howell (N.J. Eq.), 129 A. 822.] However, the deed from the St. Louis Improvement Company to respondent expressly provided that the restrictions were made "for the mutual benefit of all parties purchasing lots by similar conveyances from this grantor." But the grantor on its part did not covenant to make similar conveyances of the other lots, or any of them, and he did not make a similar conveyance to appellants' grantor. From what has been said it is apparent that the deed from the St. Louis Improvement Company to respondent did not, either expressly or by legal implication, impose restrictions upon the lot subsequently purchased by appellants.

Whether appellants' lot was subject to a negative easement by reason of having been sold pursuant to a general plan or scheme of improvement remains to be considered. The broadest statement of the rule which we have been able to find in the reported cases appears in Allen v. Detroit, 133 N.W. 317. It follows:

"The law is well settled that building restrictions of the character shown are in the nature of reciprocal negative easements, and may be created upon a division, and conveyance in severalty to different grantees, of an entire tract. That a portion of the conveyances does not contain the restrictions will not defeat the same. Although some of the lots may have written restrictions imposed upon them and others not, if the general plan has been maintained from its inception, if it has been understood, accepted, relied on, and acted upon by all in interest, it is binding and enforceable on all inter se. It goes with the land, and is equally binding on all purchasers with notice."

In considering the applicability of the rule just stated to the facts here the first inquiry is: Was appellants' lot sold and conveyed pursuant to a general scheme of development and improvement? The very fact that it was conveyed by deed not containing the restrictions embodied in the deeds to the other lands, according to many authorities, is of itself sufficient to take it out of the general scheme, if there was one. [Beattie v. Howell, supra; Bacon v. Sandberg, 179 Mass. 396, 398.] There is a stronger reason, however, for holding that appellants' lot was not sold in connection with a general scheme or plan, and that appears from the language employed in the form deeds executed by the St. Louis Improvement Company, including the one to respondent, which limits the benefits of the restrictions to parties "purchasing lots by similar conveyances." This language by necessary implication excludes the lot of appellants from the benefits, and consequently the burdens, of a general scheme, if one existed.

It should be added further that, if appellants' lot was included within a general plan of improvement and development, involving the restrictions contended for, appellants were not shown to have had any notice of it. There was no deed in their chain of title by which any of their grantors, immediate or remote, had undertaken to burden the lot with any such restrictions, or covenanted to do so. Consequently there was nothing of record to impart constructive notice within the purview of King v. Trust Co., 226 Mo. 351, cited by respondent. And the record is absolutely barren of anything tending to show actual notice.

As it appears that appellants' lot is not, under any legal theory, burdened with the restrictions which respondent seeks to impose upon it, the judgment of the circuit court must be reversed. It is so ordered. All concur, except Gantt, J., not sitting.