148 Mo. App. 157 | Mo. Ct. App. | 1910
Defendant Dorcas M. Hampton owns the east 35 feet of lot 5, block 2994 of the city of St. Louis, fronting 35 feet on the north line of Maple avenue, having acquired the property by deed dated October 6, 1908, from Nettie Lippe. The property has on it a two-story dwelling house with a basement, and is number 5221 Maple avenue. The plaintiffs own lots on which, in the same vicinity and on the same thoroughfare, stand their homes. The lot of defendant Hampton was formerly owned by E. G. Butler and others as tenants in common and was by them conveyed on June 8, 1896, to Edward J. Kirby, by deeds filed of record and containing the following covenants:
“This conveyance is made by the said parties of the first part and accepted by the said party of the second part, subject to the following conditions, viz.:
“1st. No building or fence made of lumber shall be erected within twenty feet of the north line of said Maple avenue.
“2d. No building shall be erected on said land which will cost less than $4000.00, nor shall there be erected more than one building on said lot.
“3d. No building shall be erected on said land for business purposes or of the character known as flats, or tenement houses.
“4th. No store, saloon or livery stable shall be maintained or conducted on sáid land.
“5th. The foregoing conditions to remain in force for twenty-five years and from and after the 1st day of March, 1892.”
The conveyance under which plaintiffs hold title contain the same covenants recited from defendant Hampton’s deed. Shortly after she acquired her house and lot, she made a contract with defendant Vornholt, who is a builder, to make certain changes in the house so as to adapt it for the occupancy of two families, one to reside on the first and the other on the second floor. The house is in the style known as Queen Anne, has a
“Q. That is j.ust what I am getting at. Then we Avill take a building that has one front entrance; one
“Q. What is the difference from an ordinary residence? A. A private residence is for one family in its construction.”
The word “flat” is thus defined in dictionaries:
“A floor, loft or story in a building; especially a floor which forms a complete residence in itself. Residence flats of the better class are, in the United States, often called apartments. A building divided into flats.” Webster’s New International Dictionary.
“A floor or portion of a floor; especially one divided into rooms and fitted for the occupancy of a single family; apartment.” Standard Dictionary.
“Tenement: A room or more usually a set of rooms; one of several of the same character designed for the occupancy of a family.” Standard Dictionary.
We are not aware that the word “flat” has a technical legal meaning so a court can pronounce absolutely one way or the other as to whether a building is a flat or not. No doubt testimony might be taken which so conclusively showed the truth about a building in controversy as to compel a ruling one way or the other. But where the testimony is contradictory, as in the case at bar, the question would seem to be one of fact. Of course the purpose to be achieved by the restrictive covenant should be kept in mind, and looking at the covenant before us, we incline to hold it was inserted in the deeds to the lot in question and other lots in the vicinity, to prevent plural occupancies by families of the houses on the street; that is to say, to prevent the houses from being used by more than one family,
■The judgment is affirmed.