*1 166 verdict is asserted to be invalid it does not use the
The because punishment “imprisonment.” It occurs to us that word years very imprisonment. penitentiary three much like Pos- sibly insufficient, making point appellant the verdict is but in is faced with a dilemma: Either directs defendant the verdict imprisoned penitentiary, prescribes to be confined or or else it punishment; ease, 3704, no in the latter under Section Stat- Revised required utes the court punishment, to assess the court did. appellant cites authorities on the construction of Section requires
3702 which
where there are several
punish-
defendants their
ments are to
separately.
Person,
be assessed
v.
c.
Mo. 1.
[State
269;
Gordon,
State v.
Emma Pickel, Bernard Garcia, Pickel, G. A. and Lucille Pickel, Estelle Edward C. Pickel Pickel v. McCawley, O.J. Blake, P. William L. Beckmann, James Chauncey F. William W. Butts, P. Dickmann, Bernard President Heath, Proetz, William H. Wiltz, Peter A. Property Association, Secretary Owners’ O’Brien, Michael J. Property Association, Owners’ Peter A. Wiltz, Jetta C. Wiltz, Mullaney, Bessie Landau, Annie Morris Landau, Mary Brzozowski, Otherwise Known as Bowski, Alexander Brzozowski, Otherwise Known as Geneva Bowski, Investment William F. Walters, Walters, Company, Cicardi, Rosa Louis Jr., Administrator, S. James Tiernan, Appellants R. . 44 (2d)W. 857. Two, Division December *2 ’Malley appellants. Frank G. O *3 n &McBoberts for Leonard, respondents. Sibley
Banister, *4 day June, on 19th of filed WESTHUES, 1927, 0.-—Plaintiffs the Louis, petition City an Circuit off the of St. amended the Court asking placed prop- for the removal of that were on their restrictions erty by agreement day 12th of reason of dated the restriction petition record March February, 1924, and filed for year charges that the the district on on sides of and Cook from Grand Avenue avenues both west, east to Vandeventer Avenue on the decided to enter agreement negroes prevent buying ob- into restriction from or taining any of the homes' of the district and within the boundaries preserve race; the district for the Caucasian to. held.by the district of property owners within Avenue, organization perfecting and Cook view with a an "Property Association.;” president be known as Owners meetings; plan elected one these have was to the entire restricted; district plaintiff, Pickel, others, signed that the Emma and agreement representation inducement, under the with and that, understanding all of the owners in the entire district neighborhood, particularly in the two on both blocks sides '.and Avenue, Avenue between Vandeventer and Grand should sign the any and would restriction before the same or re- such binding, strictions would become or be recorded. fur- Plaintiffs allege placed ther that the officers of association record paper, signed by plaintiff, Pickel, others, Emma in violation agreement understanding Pickel, plaintiff, Emma other property district, in said paper would not filed until for record all owners of district agreement; paper that the filed for record not does signatures contain property owners, of all the even the one- plaintiffs’ half block in filing which is located. That the paper through was done misrepresentation fraud and con- stitutes a cloud on the of plaintiff, title estate Emma Pickel. allege Plaintiffs further proposed that since the time it was re- *5 neighborhood against the negroes strict negroes, have come into the occupy practically every district and now home and business within district, excepting the entire the north side of be- Avenue Spring. Avenue, tween Krum constituting Avenue and one-half located; that property is plaintiffs’ and defendants’ block, wherein neighborhood plaintiff’s prop- is a colored section and whole now the petition The erty completely surrounded colored inhabitants. is according plan originally to the the as outlined that further states agreements placed to the one recorded restriction similar association covering plaintiffs’ on both of Cook property property the sides re- immediately plaintiffs’ property, these north of but that parties concerned; the been all that strictions have abandoned property question of in in majority of the owners the block on the opposed any north of now restrictions side Avenue are to property negroes; against plaintiff on their that Emma Pickel is eight life tenant in John E. of lots and block two of Cooks’ seven Missouri, of City Louis, Subdivisión the of in to St. block city; plaintiffs said the other the owners the remainder are fee; prevents plaintiffs that the restriction covenant oh record from negroes disposing of to property their to is impossible it property any price people sell the fair to white the because now colored is section. the Plaintiffs asked paper filed of record be declared null and void.
Defendants filed an answer which they admitted existence restrictions, allegations plaintiffs’ but denied the other petition. Defendants cross-petition asking also filed a to the court enjoin enforce the perpetually plaintiffs restrictions and to from violating the terms of the restrictions for the remainder of years provided of twenty term as in the covenant.
At a trial of the cause the circuit court judgment entered a plaintiffs’ decreeing agreement decree the restriction to null and void. The court prayed denied the relief for in defendants’ answer. From this appeal. and decree the defendants The case finding evidence warrants during year 1923 negroes commenced move into on Cook Ave- nue, east of Immediately Vandeventer Avenue. west of Vandeventer city. colored section of the east Vandeventer, especially on becoming Cook and avenues, alarmed at the fact negroes moving neighbor- their into coming hood and were Avenue, east of Vandeventer called a meet- ing of At meeting question owners. was dis- entering agreements cussed as to advisability restricting into neighborhood against negroes. Numerous were held urged sign agreements. and the Exchange forms were from obtained the St. Louis Real Estate contain provisions and these the usual found similar restriction agreements. appointed evidently Solicitors were made a house attempted signatures. to house canvass obtain At a fol- lowing meeting report these solicitors would their success *6 sign. refused to Other names of those who had report the also
and signatures the to endeavor to obtain then selected solicitors were sign. We the refused to find from previously those who had of agreement forms four these restriction least of that evidence The of the district. covering various blocks in the were circulation plan finding general the that the was also warrants evidence neighborhood and the the entire restrict understanding agreements so with the did signed the restriction in two Avenue, the Finney Avenue and both of Cook sides avenues, were in to be Yandeventer and between Grand blocks obtaining signatures of these progress The zone. the restrictive plan; lack of interest because of the the rather was slow sign. During the this refused to time many property owners neighborhood. This the seemed negroes to invade continued they in- association. Therefore the officers of the to have alarmed signatures immediately pos- the obtain all structed the solicitors very solicitors, however, unsuccessful. The restric- The were sible. agreements placed agree- of then on record. One these tion Avenue, ments, covering by on been less a block Cook had agree- only seven owners. The restriction than a or third immediately covering south side of Avenue ment the plaintiffs’ property record, for but the property of was filed south (restrictions. immediately disregarded the abandoned a The restrictions on Cook Avenue were never enforced. Within very densely by short the time entire was settled At population city. the colored of time of the trial both the the Avenue sides of Cook Avenue and south side between Spring by negroes, Yandeventer only avenues were settled five being occupied by people. homes one-half block which white plaintiffs’ property is located withstood invasion because of question. conclusively restriction here in covenant The evidence plaintiffs’ shows the one-half block in which is situated Immediately completely by negroes. plain- is surrounded north of building alley negro apartment tiffs’ and across is negro by Spring occupied Immediately families. east fifty-four negro by negroes church. This church was obtained subsequent organization Many Protective Association. of this prior association were held in church negroes. purchased by to the time it was Plaintiffs and num- they ber of the defendants this case testified did not know the agreements record; restriction been filed that their under- standing they filed were not to be unless the entire district on both sides of Cook avenues should be restricted. in its circuit court found in part decree follows: or instrument paper said find that doth further court
“The or limita- impose restrictions attempts far as the same writing’, so (voluntary sale, alienation use, enjoyment,, occupation, tions plaintiffs or encumbrance operation law), and/or *7 assigns grantees any person other by or heirs, or respective by their estate here- to said real or title might thereafter hold derive or) belongs plain- to thereof, which any part described, inbefore real here- to the estate plaintiffs title of the upon cloud is a tiffs, writing was in or instrument paper said described, and the inbefore following for the force and effect and of no null and void and reasons, to-wit: signature plaintiff find Emma doth that the of
“Because the court representation and induce- she same under Pickel, in that understanding that all with the ment and proposed restricted, particularly and district to be
neighborhood and Avenue, in between Krumm Avenue and Grand on sign paper, would also Louis, Missouri, should and said or St. papers, signatures’ prop- or circulated for paper of
similar binding or owners, before the same would be recorded become erty on, sign paper papers, that all such or and who did those neighborhood and, sign did paper in said district not such Finney Avenue, in block papers, or even on the north side of said city Louis, No. 3737 of the of St. doth find that since the to
“Because court further attempt neighborhood signing the said and district and the of said restrict writing by in said Emma Pickel the whole paper instrument or used, neighborhood occupied has to be and now is and district come changed, people, completely enjoyed by colored and has so that impracticable impossible it to is now restrict place persons as of residence for and district a desirable restricting neighbor- carry the of Caucasian race and to intention people, against occupancy its or colored and district use hood Avenue, in No. including block 3737.” north side of said The, bearing plain- found the instrument Circuit Court also changed signature materially was altered and after tiff Emma Pickel’s signed the same. alteration made Pickel That the Emma had rendering null knowledge,- instrument or without her consent and void. assignment of is as
Defendants’ errors follows: plaintiffs in finding “1. The court erred the evidence and dismissing cross-petition. defendants’ admitting testimony “2. The of court erred contents alleged prior covenant in written the absence of a sufficient showing destroyed, that such instrument was either lost or and also
174 diligence procure showing any any search
in, the absence produce. a notice even same, and without refusing testimony of the to admit erred “3. The court Emma Pickel plaintiff that the to the effect Katherine Jones witness if she binding upon her would be that the covenant witness told the necessary being it nothing about to witness signed it and said property owners.” per 100 cent of the signatures of procure the In assignment order. in reverse disposing of the errors We are the court erred contended assignment defendants the third defendants, which, true, if tended testimony rejecting offered prior Pickel, made statements plaintiff Emma prove being testimony. This inconsistent her dispose will proceeding an we equitable case circuit though it been admitted in the the evidence consider 389; Vining c. v. Orphan Asylum, Mo. 1. v. court. [Lindhorst (2d) c. cases Ramage, 3 W. Mo. S. cited.] proof is as offer follows: *8 OIMallby: prove by this that she did We offer to witness “Mr. Mrs. with Mrs. Pickel and that Pickel told her have a conversation binding signed it, on her if she that these covenants would be being necessary Pickel, time, nothing that about it that Mrs. said sign per procure property cent of the owners to the covenant to binding or same would be would be recorded. before the Sibley: grounds object “Mr. to that on the stated. I Sustained.” “Íhe Court: assignment merit in
There is no defendants’ second of error. charge petition specifically plaintiff in their that Emma Plaintiffs signed a written territory Pickel covenant which included the
both sides of within proposed re- stricted area. That afterwards some member of as- sign represen- sociation induced her to a second covenant ing destroyed. her first had been lost or This was. suf- alleged prior ficient notice to defendants that covenant would brought question. in be C. J. and cases There [22 cited.] testimony prior in the record of a covenant. A number of wit- they representa- nesses testified second covenant on the tion that the first had been lost. One witness testified that first had been mutilated. Under these circumstances trial court did not admitting tending err in testimony prove the boundaries con- in Again tained the first covenant. the existence or non-existence prior question is not a covenant vital the case. C. J. [22 sec. 1359.] assignment
The first of error of defendants is that the court erred finding for plaintiffs considering on the merits of the case. In question taking we are into consideration the evidence of witness though Katherine Jones as it had been admitted. fi.n¿ing signature court>s of Emma Pickel was representation obtained under the and inducement and neighbor understanding owners, with the property all '¡the proposed sign restricted, agree hood be should restriction ment, thereto, or binding one similar it before became on those sign, did supported by overwhelming weight an testimony surrounding convincing and also circumstances. So are point necessary circumstances on that deem it we to call at only tention to any few salient facts which are inconsistent theory. other instance, meeting For when a was called to devise protect neighborhood against' means to negro invasion it was attended owners of from both sides of Cook and avenues between Vandeventer and Grand avenues. Not one word testimony do we find in proposed planned the record that it was or meeting any at this meeting only protect other the one-half question. block contrary here On the the defendants’ own tes timony establishes the fact agreements that restriction were circulated obtaining for the signatures owners in the ’ general entire district mentioned. Also that the talk at these meet ings was with protecting reference to against the entire negro president inhabitants. The of the association lived on Cook Avenue. Other parts were from different of the district. officers only If question the one-half block in protected, was to be what president interest did the plan? the association have in such a majority those in attendance at these seemed to owners on Cook avenues, other than those question. the one-half block in What interest could these *9 protect owners have to at meetings, except, try these to to have the entire restricted? witness, Defendants’ Mrs. Kath Jones, erine testified that Mrs. Pickel sign, solicited her to and she sign, did lived, the covenant. Mrs. time, Jones on the south Finney side of Avenue. What became signed by of the covenant Mrs. Jones? Her name is question. not on the one Again, here in what interest Mrs. did Pickel have the south Finney side of Ave Why nue?- should Mrs. sign Jones the covenant at Mrs. Pickel’s request only if the one-half question block here in constitutes restricted zone within itself? escape There is no from the conclu1 sion planned that it was understood at these to have the entire district on both sides of Cook and avenues within zone, one restricted if done, could not be then those signed should Subsequent not be bound.' strongly events also sup port theory. this When the officers in desperate their efforts failed signatures to to block the obtain sufficient stampede negroes 176 agreements were Avenue, the restriction
coming east of Vandeventer similar question but here only the one record. Not filed for Cook and on both sides covering property the agreements barrier very best, but the evidently their The officers did avenues. The negroes continued. the influx been broken and invasion prevent the to further all efforts owners abandoned negroes. the sold their to record placed on voluntarily restrictions released the blocks several under now except the one them was made to enforce and no effort the to enforce property owners seek In case two consideration. this plain for defendants, testified but covenant. Others were made to release willing and anxious also, they were and, tiffs are two In one-half there restrictions. block bound. they not and, therefore, are sign agreement not who did been defeated. object have very purpose of the covenant proposed neighborhood and within In fact conditions in the the cove- changed the time radically prior to so restricted area were object cove- nants that the essential were recorded liberty Negroes totally destroyed. were at nan^s then many on both purchase homes buy occupy and did district. proposed within restricted Cook and avenues why be saddled There is no valid reason the restrictions should upon They living very con- plaintiffs in this case. are under surroundings against proposed which the covenant ditions and protect them. We hold that under the in this case evidence there was such a change zone, radical proposed of conditions within the réstricted attempt after the to restrict the district and before time trial, entirely purpose as to defeat main of the covenant. therefore, The covenant, longer binding should no be enforced. Heights Compton Church, 1, v. Christian 328 Mo. 40 [Rombauer (2d) 552, 553; page 212, 328, S. W. 1. c. 32 C. J. sec. also cited; Rowland, sec. and cases Koehler v. 205 W. e. S. 221.] Defendants Pierce v. Co., cite St. Louis Union Trust S. W. authority position. case, however, their inapplicable That facts the case at opinion bar. The basis in the Pierce case, supra, may gathered quotation from a short which we .think is the page essence the whole case. At says: 408 the court “But notwithstanding the assaults of commercial upon business the sur rounding neighborhood, the evidence as a whole rather tends show that Vandeventer successfully Place itself has withstood advance of army, the commercial and has so far ex maintained its *10 single clusive family character highest residential district of class.” The Pierce case and the Rombauer supra, recognize case object the rule purpose that when the and the of the restriction have brought by destroyed, is about especially when been zone, restriction change of then the conditions within the restricted it position is that binding. defendants’ ceases to be The weakness of by the cove- argued block, covered is and assumed that the one-half fallacy question, restricted zone. The nant here constitutes the evidence, so by is position, of that facts under the as disclosed there- apparent necessary further comment that we do not deem it on, except beyond any question, say that the evidence establishes neighborhood understood, that the owners of the entire plan was, covering blocks on both sides the covenants together Finney avenues, Cook and should considered and was so plan totally one This failed restrictive zone. create defendants by parties exception treated all of two concerned with in this case. unnecessary
What have we said renders it to consider the other ground upon plaintiffs’ which the lower court rendered its decree favor. finding, merits, Our is in accord the learned chancellor is, therefore, It tried the case the circuit court. right wrong holding
immaterial whether the lower court was that there had been material alteration of the instrument or cove- nant after it by plaintiff had been Emma Pickel. judgment, accordingly msi, Cooley is affirmed. and Fitz-
simmons, CC., concur. PER foregoing opinion by CURIAM:—-The C., is Westhues,
adopted opinion All judges as the of the court. concur. Rehearing.
On Motion for PER rehearing CURIAM:—In their motion for a seem defendants opinion be alarmed that our in this case nullifies other re- controversy. judgment strictive zones not here in We affirmed the binding only parties the circuit court. That is on those plaintiffs that were named as and defendants. opinion
In our we found that the entire district negroes. is completely mentioned now settled defendants challenge being that statement as supported incorrect and not testimony. In part opinion, speaking the first when neighborhood, we made reference to “both sides of Cook blocks avenues two between Vandeventer and Grand say avenues.” What the writer intended to was between Vande- Spring venter and Avenue Grand Avenue. Krum and not immediately is Spring immediately east of Vandeventer and east *11 neighborhood in plat A copy of photographic
of Krum. dealing, herewith controversy are filed which we plat opinion. -The correctness of is not part of this made questioned by appellants. This. is the referred our opinion. now, opinion, We was stated restate supports statement, tbe tbe evidence “at trial tbe time both sides of Cook tbe south side of Avenue Spring by negroes between Vandeventer and avenues were settled ’’ only occupied five people. homes were white carefully We have rehearing. considered the motion Our con- clusion is that circuit court the merits of *12 the ease was correct. rehearing
The motion for is therefore All overruled. concur. (2d) Appellant. S. W. 15. The State Miller, v. Neail Two, Division December