THE DREXEL STATE BANK OF CHICAGO, Trustee, et al. Appellees, vs. FRANCES B. O‘DONNELL, Appellant.
No. 20272
Supreme Court of Illinois
April 23, 1931
Rehearing denied June 3, 1931
173 Ill. 173
Mr. COMMISSIONER EDMUNDS reported this opinion:
On April 6, 1928, the Drexel State Bank, a corporation, as trustee, and Clarence Poffenberger and Andrew J. Kolar as beneficiaries under the trust, filed a bill in the superior court of Cook county to remove a certain building restriction as a cloud on the title of 40 1/2 feet of lot 2 in a described subdivision in the city of Chicago. The cause was referred to a master, who recommended that the relief prayed be granted. From a decree entered in acсordance with this recommendation Frances B. O‘Donnell, one of the four defendants, has appealed.
On March 3, 1903, Eugene S. Kimball conveyed to J. Milton Trainer lots 2 and 3 in the subdivision in question. Lot 2 lay at the southeast corner of Greenwood avenue and East Forty-fifth street, fronting 55.6 feet on Greenwood avenue and 198 feet on East Forty-fifth street, and lot 3 lay immediately south of lot 2, fronting 50 feet on Greenwood avenue. Among other provisions the deed contained the following:
“The said J. Milton Trainer as a part of the consideration hereof covenants and agrees to and with the said Eugene S. Kimball, and this conveyance is made, subject to the following restrictions and limitations as to the use of the west 148 feet of said lots 2 and 3, first, said J. Milton Trainer will not and his heirs and assigns shall not, on or before April 3, 1907, erect or suffer or permit to be ercted on said west 148 feet any flat or apartment building; second, said J. Milton Trainer will not, and his heirs and assigns shall not, on or before April 3, 1907, erect or suffer or permit to be erected on said west 148 feet, any building or improvements, except three detached dwelling houses, to front on Greenwood avenue, Chicago, Illinois; third, said J. Milton Trainer will not, and his heirs, executors and assigns shall not, on or before April 3,
1907, place any building or structure on said west 148 feet, the west line of which building or structure shall extend west of a line parallel to and 40 feet east of the east line of Greenwood avenue, Chicago, Illinois; which said covenants and agreements shall be construed as covenants running with the land.”
This instrument was duly recorded.
On March 15, 1905, J. Milton Trainer and wife conveyed and warranted lots 2 and 3 to the Chicago Title and Trust Company as trustee. This deed, which was duly recorded, contains, among other provisions, the following:
“Also subject to the following restrictions and limitations as to use of west 148 feet of said lots 2 and 3: 1st, said Chicago Title and Trust Company will not on or before April 3, 1907, erect or suffer or permit to be erected on said west 148 feet any flat or apartment building; 2d, said Chicago Title and Trust Company will not on or before April 3, 1907, erect or suffer or permit to be erected on said west 148 feet any building or improvement except three detached dwelling houses to front on Greenwood avenue; 3d, said company shall not on or before April 3, 1907, place any structure on said west 148 feet within 40 feet of Greenwood avenue. To have and to hold the said premises with the appurtenances upon the trusts and for the uses and purposes herein set forth. Full power and authority is hereby granted to said trustee to improve, manage, protect and subdivide said premises or any part thereof, to dedicate parks, streets, highways or alleys, and to vacate any subdivision or part thereof, and to re-subdivide said property as often as desired, to contract to sell, to sell on any terms, to convey either with or without consideration, to donate, to dedicate, to mortgage, pledge or otherwise encumber, to lease, to partition, or to exchange said property, or any part thereof, for other real or persоnal property, to grant easements or charges of any kind, to release, convey or assign any right, title or interest in or about said premises, and to deal with said property and every part thereof in all other ways
and for such other considerations as it would be lawful for any person owning the same to deal with the same, whether similar to or different from the ways above specified, at any time or times hereafter, and before the end of twenty-one years from the date hereof. In no cаse shall any party, to whom said premises, or any part thereof, shall be conveyed, contracted to be sold, leased or mortgaged by said trustee, and in no case shall any party dealing with said trustee in relation to said premises, be obliged to see to the application of the purchase money, rent, or money borrowed or advanced on said premises, or be obliged to see that the terms of this trust have been complied with, or be obliged to inquire into the necessity or expеdiency of any act of said trustee.”
On May 11, 1905, an indenture was executed by Eugene S. Kimball and J. Milton Trainer reciting the conveyance by Kimball to Trainer of the above described premises and the conveyance of Trainer to the Chicago Title and Trust Company as trustee, and providing that the restrictions in said deeds pertaining to the building line should not apply to the erection of bay windows, porches or front steps. This indenture was duly recorded.
On May 11, 1905, the Chicago Title and Trust Company entered into an agreement with David S. Googins and his son-in-law, Frederick W. Moore. This agreement, which was duly recorded, recites that “whereas said trust company has this day sold and conveyed to said Moore the south 32 1/2 feet and to said Googins the north 32 1/2 feet of the premises situated in the city of Chicago, Cook county, Illinois, described as lot 3, and the south 15 feet of lot 2,” subject to certain conditions as to the use and occupancy of the premises; that the trust company still owns the remaining 40 1/2 feet of lot 2, and the parties have agreed, as part consideration for the sale to Moore and Googins, that like conditions as to use and occupancy shall hereafter pertain to the remaining 40 1/2 feet and that a certain easement
“Now therefore * * * the parties hereto do agree with one another as follows: No flat or apartment building shall ever be erected upon said 40 1/2 feet of said lot 2 now owned by said trust company and only one detached dwelling house with barn and ordinary appurtenances thereto shall at any one time be upon said premises, such house to front on Greenwood avenue, and no building or structure which shall be placed on said premises shall extend west of a line parallel to and 40 feet east of the east line of Greenwood avenue, excepting bay windows, porches or front steps. A perpetual easement of passage over the east eight feet of said lots 2 and 3 for the ordinary usages of a private alley is hereby created and dedicated by the parties hereto for the sole use and benefit of the present and all future owners of said lots 2 and 3. * * * All of the foregoing covenants and privileges shall be construed as running with the land and shall extend to and be binding upon all future owners of the premises above described.”
On that same date the Chicago Title and Trust Company executed deeds to Moore and Googins as stated in the agreement, which deeds were duly recorded.
In 1905 Googins and Moore built ten-room, three-story brick рrivate residences on these holdings, and the residences are now worth around $25,000 each. The property conveyed to Googins was owned by him until his death and was then conveyed to Paul Byrne, who conveyed it in 1924 to Frances B. O‘Donnell, his sister, appellant. The property conveyed to Moore is still owned by him, and he was made a defendant in this proceeding.
The 40 1/2 feet thus remaining in the Chicago Title and Trust Company after these conveyances is bounded on the west and north by Greenwood avenue аnd East Forty-fifth street. It was retained by the trust company until December 9, 1922, when it was conveyed to Hugh Daly, father-in-law of Paul Byrne. This deed, which was duly recorded, contained no restrictions or limitations on the use of the
The chancellor found that at the time they entered into the purchase сontract Poffenberger and Kolar had no knowledge of the existence of the restrictions upon the use of the premises; that appellant and Moore lived in single-family residences upon the property acquired by them as above stated, and that neither they nor their predecessors in title had violated the restrictions contained in the agreement of May 11, 1905. After making various findings with reference to the erection of apartment buildings on other streets the chancellor found that no buildings have been erected on either side of Greenwood avenue between Forty-fifth and Forty-sixth streets since the erection of the two houses owned by Moore and appellant, with the exception of an apartment building located at the northeast corner of Greenwood avenue and Forty-sixth street, which was erected about twenty-three years ago; that one residence on the east side of Greenwood avenue between Forty-fifth and Forty-sixth streets was converted into an apartment building about two years ago and that two houses on the west side of Greenwood avenue between said streets have been remodeled and are used for taking in boarders and roomers; that on the east side of Greenwood avenue between Forty-
It is apparent from these findings that the decree is based upon the theories (1) that becausе of the changes in the nature of the district surrounding the property in question and inability to use the property profitably for private residence purposes the restrictive covenant originally entered into for the benefit of the adjoining property should be abrogated; and (2) that the covenant, in so far as it purported to be in effect after April 3, 1907, was invalid because the Chicago Title and Trust Company had no power to make it. Our opinion is that the decree cannot be sustained upоn either theory.
It has been announced as the rule in this State that equity will not enforce a restriction where by the acts of the grantor who imposed it, or of those who derived title under him, the property and that in the vicinity has so changed in its character and environment and in the uses to which it may be put as to make it unfit or unprofitable for use if the restriction be enforced, or where to grant an injunction against violation of such restriction would be a great hardship on the owner and of no benefit to the сomplainant, or where the complainant has waived or abandoned the restriction. (Cuneo v. Chicago Title and Trust Co. 337 Ill. 589; O‘Neill v. Wolf, 338 id. 508.) In these two recent cases thorough consideration has been given to the factors involved in applying this general rule. Follow-
“While it may be a financial hardship upon appellants to enforce the single-dwelling restrictions on their lots, yet it must be borne in mind that these restrictions were in the deeds which they took to the property and are made for the benefit of all of the lots on Castlewood Terrace. If the character of the property on Castlewood Terrace had by the acts of the owners thereof changed to the extent justifying a court of equity to remove restrictions that court should not hesitate to do so, but the fact of change in the neighborhood of the property on Castlewood Terrace does not, alone, warrant a court of equity in relieving the property of appellants here from the restrictions imposed.”
It may be granted that the chancellor was warranted in finding that the “district” in general, as above described, can no longer be classed as a private residential neighborhood and that some degree of financial hardship will result to appellees unless the restriction complained of be removed, but consideration must also be given to the fact that, according to the map introduced in evidence, on the east side of Greenwood avenue, between the houses belonging to appellant and Moore and the apartment building at the northeast corner of Greenwood avenue and East Forty-sixth street, there is a row of thirteen residences of substantial stone and brick construction; that according to the map, on the west side of Greenwood avenue between East Forty-fifth and East Forty-sixth streets there are ten residences, most of them on 60-foot lots and most of which appear from photographs in evidence to be large and sub-
The theory upon which is based the contention that the Chicago Title and Trust Company had no powеr to prevent the erection of an apartment building on the premises in question after April 3, 1907, is that the deed by the Trainers contained an express provision forbidding the erection of any apartment building, or any building or improvements except three detached dwelling houses, on the premises thereby conveyed, on or before April 3, 1907; that this being an express provision dealing with the right to erect apartment buildings on the premises described, it controls the general grant of authority thereafter set fоrth, and that under the maxim expressio unius est exclusio alterius it must be held to be the only provision in the deed covering the right to restrict the nature of the improvements upon the premises. The maxim thus invoked expresses a rule of construction—not of substantive law. (United States v. Barnes, 222 U. S. 513.) As this court said in Public Utilities Com. v. Monarch Refrigerating Co. 267 Ill. 528, it “should never be followed to the extent of overriding a different intent clearly expressed.” It must be borne in mind that the deed by which Trainer acquired
It is further contended, however, that the Chicago Title and Trust Company had no power to create restrictions against the property which would extend beyond the period of the trust. Counsel for appellees state that an examination of the authorities fails to disclose any case in which the facts were similar to those in the case at bar, but argue that an analogy is found in certain cases which hold that a trustee has no right to execute leases extending beyond the period of the trust. Bergengren v. Aldrich, 139 Mass. 256, and Gomez v. Gomez, 147 N. Y. 195, are cited in this connection. In those cases it was held that no power was disclosed to authorize trustees to renew leases after the period of the trust or to bind remaindermen to renew leases executed during the period of the trust. On the other hand, it was held in Greason v. Keteltas, 17 N. Y. 491, that a trustee holding a legal fee, determinable when the purposes of the trust should cease, has power at
Appellant contends that the chancellor erred in taxing certain costs against her and the other defendants. There was a stipulation that each side would pay for writing up its own testimony. Stenographer‘s charges paid by appellees were $225.48 and by appellant and the other defendants $60. When the master‘s report was completed each side paid to the master the statutory fees for the testimony and documentary exhibits offered by each side, amounting to $184.50 by appellees and $124.50 by appellant and the other defendants. The chancellor found that equitably such charges should be paid by the parties that had theretofore paid the same and that no amount of the statutory fees and stenographer‘s fees should be taxed as costs. The further fee of the master was fixed at $425, and appellant and the other defendants were ordered to pay half of this. In chancery suits the question of costs rеsts largely in the discretion of the trial judge. While this is a judicial discretion, reviewable by the courts of appellate jurisdiction if it is abused, ordinarily the conclusions of the trial judge are accepted as final. (Leigh v. National Hollow Brake-Beam Co. 224 Ill. 76.) We are unable to say that the chan-
Per CURIAM: The foregoing opinion reported by Mr. Commissioner Edmunds is hereby adopted as the opinion of the court, and judgment is entered in accordance therewith.
Reversed and remanded, with directions.