85 Mo. App. 634 | Mo. Ct. App. | 1900
— This action is prosecuted by Minor Meriwether and John T. Wallace, curator of the estates of Susie Lee Meriwether and Elizabeth Meriwether, who are minors and grandchildren of Minor Meriwether. The object of the suit is to enjoin the defendant Joy from erecting a building on a lot on Morgan street in violation of a restriction contained in his deed. Minor Meriwether conveyed the lot to him, and the deed contains the following covenant or condition, to-wit: “No building shall be erected within thirty feet of the north line of Morgan street; no livery, sale or boarding stable, blacksmith shop or horseshoeing shop shall be erected on the lot herein conveyed; no dramshop, liquor saloon or gambling room shall be erected on the lot herein conveyed, and no business of the character above indicated or other nuisance shall be conducted, carried on or maintained thereon or therein. These conditions are absolute and imperative.” This conveyance was made in December, 1898. In addition to this lot (which had a frontage of sixty-seven feet on Morgan street), Mr. Meriwether ait one time'owned the ground adjoining it on the east and extending along Morgan street a distance of one hundred and ten feet. On fifty-three feet of this ground immediately adjacent to- that subsequently sold to defendant, Meriwether built a house, which Was located in conformity to the building line prescribed in de
It is contended that Minor Meriwether is not a proper party because it is conceded that at the time of the sale to Joy he owned no other property fronting on Morgan street. This ■fact disposes of the idea that the restriction was in the nature of a personal covenant in favor of Meriwether, thereby entitling him to sue for its breach. Coughlin v. Barker, 46 Mo. App. loc. cit. 64. But this defect of parties appeared upon the face of the petition and advantage of it should have been taken by demurrer.
Putting aside the testimony of Mr. Meriwether we think that the other facts in evidence are sufficient to warrant the judgment. The deed from Meriwether to Joy does not in terms refer to a general plan for a uniform building line, but the nature of the restriction in the deed is, under the circumstances, referable to such a plan. After the sale to defendant, Mr. Meriwether owned no property on Morgan street. What object could he have had in inserting the condition in the deed except to give his grandchildren and Sprague the benefit of the restriction, thereby preventing the defendant from constructing a building on his lot so as to obstruct the view from their houses east and west along Morgan street ? This was evidently his purpose, and the attending circumstances were sufficient to advise the defendant of it, for the deed from Meriwether to Sprague (of which defendant is presumed to have had notice), contained like conditions; the houses built by Meriwether and Sprague were located substantially on the prescribed line, and in the erection of all houses on that side of Morgan street for some distance east and west, this building line had been observed.
We therefore conclude that the judgment of the circuit court must be affirmed, and the defendant given six months from this date within which to remove the building.