Pierce v. St. Louis Union Trust Co.

SUPREME COURT OF MISSOURI, Pierce v. St. Louis Union Trust Co. against being great weight overruled,

be and is as authority in the United States.

The instant case must be for the reversed errors 5, Instructions 87, and 9 for defendant, and for the re- by plaintiff. fusal of Instruction 0 asked There are charged, other errors but a careful retrial will no doubt go (cid:127)eliminate those, we shall not further now. We impressed plain- with some other contentions of the tiff, however. judgment

Let the be reversed and the re- cause manded. All concur.

THOMAS M. PIERCE, Treasurer of Vandeventer et

Parks, al. TRUST v. ST. LOUIS UNION COM Appellants. PANY et al., One, Division December 1925. upon Separate

1. CONVEYANCES: Bestrictions Use: Intention: Clauses. governs The actual intention oí the in the in- terpretation deed, of restrictive covenants contained in a and that purpose sep- segregating intention or is not to be ascertained context, arate clauses from their but from consideration the in- as strument a whole. upon Seventy Expressio 2. -: Bestrictions Feet Front: Unius: In- ejus&em generis expressio tention. The maxims unius ex- properly applied clusio alterius est are in the construction of writ- only ascertaining ten of_ instruments the true intention parties. Where the deed declared that none of the owners of the eighty-six upon lots in Vandeventer “will Place erect either of said seventy any buildings lots within feet of the front' the same other houses,” dwelling" not, than first-class such owners were if even employed construing restriction, per- such maxims were dwelling upon lot, mitted than to erect more nor to con- building seventy- struct kind of or structure on the rear part purpose four feet a lot and use such rear incon- parties, with residential uses. The sistent intention of the gathered deed, from the whole situation of the af- fected, present prospective purpose and the use to be ac- complished, interpretation of must determine the the restrictions. TERM, Yol. Louis Union Trust Co.

3. --: Use: Restrictions When Enforcible. Restrictions city law; fee of favored in the but when lots are covenants, parties, intention of the their solemn evidenced unmistakable, property, restrict the use the is clear and of restrictions, lawful, if will be enforced. Purposes: -: -: Offensive to Residential Use Noxious or Neighbors: Hospital. unimproved land at The owners of a tract of private edge portion city the of laid the into a outer the out central park, plan with an it's adornment with accordance elaborate for trees, art, including shrubbery, and a fountains other works of driveway private sidewalks, side maintained on each and to be against proportionately a method of assessment levied the driveways places, part abutting abut- on the or and divided the lots places bordering park ting eighty-six the the into lots. deed on containing lots, conveying relating the and the to the covenants park put, provided that “the uses to which the lots and were to right privilege frequent, enjoy to use the and and before-described every places park an shall be easement attached to each and of thereto, eighty-six lots, passing appurtenant and to be said enjoyed by had, the to the held and owners from time time of said respective occupying same;” respective their the lots and families “permit, appointed by the instruments shall suf- the trustees time, owners, of owner or from time to said fer and allow the any them, lots, any part eighty-six them or of with their or of proper respective the families or tenants under them and their (but family exceeding respect respective or in families not for egress lots) ingress and of said to have free and from to each frequent, enjoy park, place use and same of and to the said recreation;” of said lots none of the owners common resort any any building time on said will at hereafter erect lots “shall'or boundary thereof, thirty front or will erect feet of the line within seventy upon within front feet of the of either said dwelling houses, any buildings than first-class con- other same brick, iron, wood, at least stone or to cost be worth structed of upon lot, the house each not thousand dollars for shall ten building any principal permit whose front towards or erect upon any any permit part places, either of nor erect or or said uses, any specified buildings “or trade certain kinds of or lots” any kind, dangerous, to the noxious or offensive or business house, inhabitants, tavern, neighboring or hotel or tenement school, public of trade merchandise.” warehouse deeds, expressed in run with the all the were covenants These specified title, have been brick of the cost and stone and houses lots, many years eighty-five have been and for erected maintaining provisions occupied, in reference and all COURT OF MISSOURI, SUPREME Pierce v. St. Louis Union Trust Co. parks, driveways Held, and sidewalks have been that the observed. clearly original deed discloses that the was intention of the owners high-class, exclusively respec- district, create residential occupied by family tive only, houses to be members of one purpose carrying

therefore the use of one of said houses “for the running hospital, on therein 'the business of institution conveyance, cure incurables” violates the restrictions of said enjoined. and is upon Purposes: 5. CONVEYANCES: Restrictions Use: Residential Practical practical placed Construction Parties.' A construction years many meaning a restric- will, strong tive covenant contained in deeds in the absence of proof contrary, go far establish theirs as construc- Although original owners, executing tion intended. many years past placing in the their instrument restrictions express estate, may of real use have failed to completeness precision possible intention with the had annoying u,p sprung known the uses which have years, grantees consistently pursued recent if their a course by they which it is clear that understood the instrument to restrict purposes alone, practical the uses to residential that construction is great arriving interpretation of aid in at a correct of the restrictive covenants. Purposes: Hospital. put -: Restricted Use: 6. Residential a To dwelling solely purposes in house a district reserved for residential hospital as to use a for incurables violates a restriction a deed forbidding permit any the of owner a lot to “erect or trade kind, dangerous neighboring business of the offensive to inhabitants,” where the evidence shows the that term “incurables” persons suffering diseases, includes from the well known social as ataxia, cancer, leprosy well as locomotor and other similar diseases. -: To Trustees: Continuation of Restrictive 7. Covenants after Perpetuity: by owners, design- Death: Termination Consent. Where ing solely uses, conveyed to devote a tract of land to residential portion trustees, they might the central to .in thereof order that lay portion private park, driveways out such a into and side- beautify walks, improve by imposing charges the same upon eighty-six platted fronting thereon, pro- the lots and further surviving death vided that the of the last trustee the trust time, every cease and that and after should “from all and covenants, conditions, charges the aforesaid restrictions and shall remain, application binding upon in full be and force and to and every part premises, all and of the aforesaid land and every occupant every part all and owner of said land and strictly thereof, only covenants, conditions, but as restrictions charges (and trusts), running appurtenant not but with.and TEEM, Yol. Trust Co.

Pierce v. St. Louis Union every pur- thereof,” part deeds the said lands and and the restricting the use chasers of the the covenants lots contained solely purposes, did the lots restrictive covenants residential the they trustee, surviving did not nor end at the death of the last they may against against perpetuities, offend since rule of law the by owners at time terminated the unanimous consent of of the lots. slight transgression

8. -: Restrictive Use: Waiver. A does not restrictive covenants of four or five the owners waiver, by in the restricted amount to a the lots owners district, defendant clear violation of the covenants injunction suit. Changed stores, garages, coming 9. -:-: Conditions. The manufacturing plants neighborhood picture into theaters equity secluded to ad- addition will not authorize court of judge longer operating binding covenants no the restrictive . district, successfully establishing it as a residential where has family single many years maintained its character as a exclusive class, highest residential district and the shows that evidence complainants substantial benefits will continue to inure to of the covenants. enforcement Comparative controlling question -: -: Values. 3.0. The determining adjudged whether the restrictive covenants should be they longer operative is to be whether of substantial benefit no are owners; complainant and the trial court does not value to lot refusing showing prop- err the values of the to receive evidence erty compared with the affected with the restrictions removed complainants retained, con- restrictions where the content they properties single family homes as tinue to use their several greater past. properties fact have have in the they money im- value for business than have for homes is no pur- portance become unsuitable for residence where poses. Juris-Cyc. 252, Corpus Deeds, X, p. n. References: C. Section 98, 3; 216, p. 38; 385, 95, 99, 2, 30; Section 260, 449, p. n. n. Section Section p. 27; 386, 17; p. 18; 388, p. 32; 450, p. 387, 389, n. n. n. n. 49, New; Sec- p. 393, 468, 452, 391, 455, 93; p. Section n. n. 60 Section tion X, Generis, Expressio Ejusdem p. 1255, Unius, p. 403, n. 16. n. 19 C. 17. Incurable, Injunctions, 220, X, p. 410, X, p. etc., 31 n. 17. C. 52. 25 C. n. 38; 213, New; 328, p. 212, p. 321, 207, X, p. n. 91 n. Section Ó. 32 Section 60; p. 349, 40; p. 580, 581, 332, 214, 39; n. Section n. Section Section n. p. 351, n. 81. Robert City Louis Circuit Court. —Hon. from St. Appeal Hall, Judge. W.

Affirmed. COURT OF MISSOURI,

266 SUPREME v. St. Louis Union Trust Co. appellants. S. G. Smith T.

(1) provisions The from deed Yandeventer prohibit et al. Peek et ah, trustees, do not the use of hospital. in Yandeventer Place as a Bolin Tyrol Hawley, v. Inv. 273 Co., 257; Mo. Kitchen 150 v. App. Hurley 497; Mo. Morrison 201 Darr, v. 1147; S. W. Supp, v. Browrf, 60 846; N. Y. Gallon v. 172 Hussar, App. (N. Biggs Y.) Div. 393; Assn., v. Sea Gate 211 Pillsbury, Mayor 482; N. Y. Stone v. 332; 167 Mass. v. Water 306; 152 Co., Works Ala. Clark v. Jammes, hospital (2) 87 215. Hun, An “trade or dangerous, neighbor- business noxious or offensive to ing inhabitants.” Paul v. House of St. Giles the Cripple, Supp. 154 96; N. Y. Heaton 116 N. Parker, v. Supp. Riley, Y. 46; v. Carr 198 70; Mass. Stone v. Pillsbury, Payne, 332; 167 Mass. Doe Bird, 6 v. Carr. & Charity Hospital, 195; v. Commonwealth 199 Pa. St. Presbyterian Hospital, Supp. 119; Moller v. 72 N. Y. Plawley, App. 483; Kitchen v. 150 Mo. 497; Gallon v. Hus- App. (N. Y.) Biggs 172 sar, 393; Div. v. Sea Gate Assn., Moubray 482; 211 N. Y. Heaton v. 116 Packer, N. 46;Y. Imp. (N. Y.) App. Kitching v. 178 Co., 737; Div. v. Brown, Riley, 180N. 414; Y. 198 Carr v. 70; Mass. Easterbrook v. Asylum, Tobey 289; Hebrew 85 Conn. v. 130 Moore, Mass. (3) provisions 448. deed Yandeventer Place from Vandeventer et al. to Peck et al., are so trustees, conflicting indefinite, uncertain as to be void on Tyrol their face. Bolin Co., v. Inv. 273 Mor- 257; Mo. Hawley, rison v. 201 S. Kitchen Darr, 1147; W. 150 v. App. Biggs 497; Mo. 211 Assn., v. Sea Gate N. Y. 482; Orphan Society, v. Easterbrook 85 Conn. 289; Stone Pillsbury, Fortesque 332; 167 Mass. Carrol, v. v. 76 Supp. Eq. Kurtz N. 583; Potter, N. J. 60 Y. v. Hurley (4). Y. N. Y. ^Supp. 586; Brown, N. affecting The conditions changed Yandeventer Place have so date since the deed Yandeventer destroy provisions trustees, Peck et as to et al., al. high-class, attempting to create a exclusive if district, TERM, 1925. Vol. 267. Union Trust Co. Pierce v. St. Louis v. original Koehler was effect of said deed. the* College v. Trustees Rowland, 573; 275 Mo. Columbia y. Ky. Cartwright, 93 87 N. Hobson Thacher, 311; Y. Angeles McClure 36; Muir, Los v. 136 368; Assn. Cal. y. Leaycraft, 132 N. Deane, v. 36; 183 Amerman N. Y. Page v. 243; Y. N. 355; Hinkle, Batchelor v. 210 Y. Eridenberg, Murray, Eq. 143 v. 325; Orne 46 N. J. 496; 156 Mass. Stevenson, Pa. Kneip v. 487; Jackson Brewery v. 621; 255 Star Co. v. 111. Schroeder, Eq. Eortesque Carrol, 76 N. J. 163 111. v. Primas, 652; (5) have admitted the evidence should The court changed tending con- the defendants show offered Koehler v. Place. in and about Vandeventer ditions (6) By placing certain re- 275 Mo. 573. Rowland, seventy feet of the lots Vande- the front strictions remaining on the conditions Place and other venter attempt seventy-four lot, of each feet restrict specifying By Place failed. in Vandeventer and uses of stuctures character men- all structures uses Place, Vandeventer permissible. by operation of the deed law tioned in Hawley, Tyrol 257; 273 Mo. Kitchen Co., v. Bolin Inv. v. Apart- -(7). App. under 1. cases cited 497, and Mo. 150 hospitals, private buildings, schools, office houses, ment aged and for boarding homes for the houses, churches, many great lines of manu- infants, abandoned facturing Place in Vandeventer without can be built violating from Vandeventer et al. the terms of deed (Mo.) 201 Darr, S. W. trustees. Morrison v. v, Tyrol v. 257; Mo. Kitchen 273 Co., Bolin Inv. 1147; Hawley, Kitching App. Brown, v. 180 N. Y. 497;

150 Mo. Eq. Eortesque 583; 76 N. McClure Carroll, J. v. 414; Leaycraft, Jammes, Hun, v. 36; 183 N. Y. Clark 87 v. Supp. Hurly Y. 846; 60 N. Amerman Brown, v. 215; Paul v. House of 355; Y. St. Giles 132 N. Deane, v. Supp. 172 Cripple, 96; v. Hussar, Y. Gallon 154 N. Asylum, Orphan (N. Y.) v. App. Easterbrook 393; Div. Pillsbury, 167 332; Mass. 289; Stone v. 85 Conn. Moubray Imp. v. Tobey 448; Co., 130 Mass. Moore, v. 268 OF COURT MISSOURI, SUPREME

Pierce v. St. Louis Union Trust Co. App. Riley, Y.) (N. 737; Div. 70; Carr v. 198 Mass. Snpp. 46; Heaton 116 N. Y. Doe Parker, v. Bird, Payne, Hospital, Carr. & 195; Rowland v. 72 N. Y. Supp. (8) property 483. Where is restricted to a high-class exclusive residental district, if evidence neighborhood changes shows that in the have taken place prove to the extent defendants offered to at the covering property trial of this restrictions case, (9) are at an end. Koehler v. Rowland, 275 Mo. 573. permitted The court should have the defendants to in- tending troduce the evidence offered show value in Vandeventer Place with restrictions Angeles in force and the restrictions removed. Los v. Leaycraft, 36; Co. 136 Muir, Land Cal. McClure v. App. 36; 183 N. Y. v. 118 Duhne, Schwartz Div. 105; Brewing Primas, Co. v. 163 111. Star 652; Amer- 132 man v. N. Y. Batchelor Deane, 355; v. 210 Hinkle, N. Page Murray, Eq. Y. v. 46 N. J. 243; 325; Jackson v. 156 496. Stevenson, Mass.

T. M. Pierce and Samuel H. Liberman for re spondents.

(1) occupancy The use or of No. 6 Vandeventer any purpose private for other than ap- residence violates the covenants and restrictions plicable premises. to the Koehler v. 275 Rowland, Mo. App. 573; Kenwood v. Inv. 169 Hancock Mó. Co., 715; App. Sanders v. 114 Dixon, 229; Morrison Mo. v. Hess, 231 v. 997; S. W. Peters 232 Buckner, 1024; S. W. Cary, Milligan Adams v. 226 833;W. v. 264 Balsón, S. (Mo. App.) Vaughn Bornett 73; S. W. Institute, v. 199 Supp. Vaughn 45; Y. Barnett N. Institute, v. N. Y. 197 Supp. 541; Smith v. N. Y. Graham, 773; 147 Cromwell Society, Supp. American N. Bible Y. 333; v. linger 195 Neid- Assn, Supp. v. New 200 N. Poor, York Y. 852; Bergrose Supp. Co., Paine v. Dev. 198 Y. Baum- 311; N. Radding, ert v. 235 Y. Malkin, 115; N. Powers v. 225 Mass. Harris v. 110; Roraback, 137 Mich. 292; Rosen- TERM, 1925. 269 Yol. Trust Co. Union Louis v. St. Parley N. 197 Finn, sweig v. 681; 201 Mich. Rose, v. in- hospital institution (2) (Mich.) 571. A W. dangerous, offensive noxious a business curables is Yacy, 48 Bramwell neighboring v. inhabitants. Shpp. Hospital, 1 Y.N. v. 339; Babies L. J. Gilford Ch. 194 Foss, Evans v. 93; N. Y. Miller, Rowland v. 448; (3) 235 Pa. Edwards, 513; Mass. Hibberd v. high-class, exclusive, Place is still Since Vandeventer equity covenants district, will enforce residential Langan, Thompson by injunction. v. and restrictions App. 139 N. Y. Lat- Miller, 93; v. 64; Rowland Mo., 172 timer Huber, 80 174; Brown v. Livermore, Y. 72 N. v. Pomeroy, Eq., 1701; Ham- Landell v. 183; Ohio St. sec. changed (4) conditions Evidence ilton, 175 Pa. 327. Spahr properly excluded. Vandeventer Place was outside App. Cape, App. Hill, Noel v. 158 Mo. 114; 143 Mo. App. (5) Thompson Langan, Evi- 172 Mo. 426; v. 64. property camparative of in values by as to dence Vande- prop- affected the restrictions was venter Place as App. erly 187 Mo. Hazard, Reed v. 547; excluded. Miller Thompson App. Langan, 557; Mo. v. Klein, 177 v. 172 App. App. 159 64; Eoerstel, Pete Mo. 75; Mo. v. Noel Spahr Cape, App. App. v. 143 Mo. 426; 158 Mo. Hill, enjoin equity alleged SEDDON, in C. Suit violation of the restrictive covenants contained ain cer- affecting instrument tain deed or of title Vandeventer platted addition or subdivision Place, of land in the brought city St. Louis. suit Thomas M. individually and as treasurer Pierce, Vandeventer property some 38 owners residential Parks, against plaintiffs, as addition, said St. Louis Union Peyton Company Carr, T. Trust trustees under the legal' deceased, holders Kehlor, will of Almira W. property title described 1, 3, to the real Lots Place and 7, No. 6 Vandeventer John J. known as Mahon property, of said Mahon his lessees wife, Julia defendants. SUPREME OP COURT MISSOURI,

Pierce v. Louis Union Trust Co. petition Plaintiffs’ is in the conventional al- form, leging the existence of the restrictive covenants and applicability property, to defendants’ the violation plaintiffs by defendants, thereof are without ade- injunctive quate remedy praying law, and at relief. The answer deed or admits instrument contain- ing alleged petition, the restrictive covenants in the but hospital applicability denies their to a institution by way pleads incurables, affirmative defenses waiver and abandonment the restrictive covenants change of conditions in Yandev enter im- Place mediately surrounding contiguous neighborhood, which change of conditions, is averred, makes the enforce- inequitable. ment of the restrictions The answer also ownership being admits the lots aforesaid as premises the defendant and the trustees lease of the hospital Mahon for defendants use as for the care n alleges incurables; defendants Mahon have purpose any had, never and do at time to have, premises patients any said afflicted with disease contagious; hospital are ailments which that said has always quiet, orderly been will be conducted in a signs manner, and that there are no outward kind any person prem- know to what uses which would said being put, appearances ises and that to all are outward premises being purposes; used residential part premisés use of said that said Mahons for their August continuously, 3, and, home since re- question longer thereon; that is no sided high-grade, as suitable or usable exclusive residence only profitably property, but can be used the owners purposes boarding-houses, thereof for such as hotels, hospitals, orphan asylums, apartment schools, houses, buildings, purposes like and, and other therefore, office they restrictions, if ever said covenants and had binding long since ceased to be of effect, force upon any binding of the effect Vande- put property can be Place; that, vénter if'said adaptable, only it has a to which it is value uses now TERM, 1925. Yol. Trust Co.

Pierce v. St. Louis Uuion which, any price disposed greatly in of at be excess it can purposes property in of for exclusive residence and the price readily question sell will for six times sale its only. general reply purposes for residence denial. that, to show Wil- 1870,

Plaintiffs’ evidence tends liam Vandeventer and the executors of estate were fee Vandeventer, deceased, Peter L. the owners city simple Louis. tract land in the of St. a certain improve dispose of the best to land to In order said advantage, they lay a certain cross determined to out public use forever and the same to street and dedicate parks lay to ornamental also out two determined places through part of to dedi- the central said tract and parks places, surround- cate ing foot-walks pur- persons might same, to use of who ground improve around situated lots of chase adopt parks, public certain use; for more but not said parks regulations government said and to for the parks spaces side of said on each cause .the which inclusive, 1 to lots, 86, into numbered from laid out purposes, building dispose purposed expressed subject regulations restrictions to certain or- referred to. In hereinafter or instrument in the deed objects as owners, the then aforesaid, to effectuate the der parts, executed and filed parties first second plat Place of Vandeventer officea the Recorder’s conveying 1870, 18, June instrument, dated deed or Napoleon McCune, John S. Mullikin Peck, Charles H. parks part, laid the two the third trustees, as open spaces plat, on map out or shown designated parks, adjoining on the said each of and side map and South Vandeventer Place North Vandeventer designated strips on said of land and also Place, surrounding foot-paths map and sidewalks and for including map, places designated parks on said said map 86 lots other than shown all the land building purposes. The deed ground intended Re- July office in the 1870, duly was recorded OF SUPREME COURT MISSOURI, 272 Louis Union Trust Co. City corder Deeds of of St. Louis. In substance provides that the three trustees therein named shall conveyed, improve spaces in trust, hold the lands to conveyed; lay parks, and to out construct ornamental grounds plant place walks; and to and therein suitable shrubbery, appropriate trees and and other decorations may proper; or of use art be works deemed to grade pave lay open spaces construct, out, con- parks; tiguous keep to such to maintain and such im- provements good repair against every order and trespass pay discharge encroachment, to nuisance; or public against all local or taxes assessed said lands and, permit, “to suffer furthermore, allow owner or any time, from time to owners, lots, said or any part respective prop- or them, them with their respec- er tenants under them families and their (but exceeding family tive one families for or in re- lots) spect ingress each of the said to have free parks, egress from to and either of them; and frequent, enjoy use and same common subject always under and recreation, resort and to such regulations rules and as the owners of in num- two-thirds (as map) ber of all the said lots numbered said shall, prescribe.” time establish and time, make, from empowers deed also authorizes and the trustees to col- charges lect recover annual assessments respective chargeable 86 lots, each of said lots eighty-sixth money expended share of sums upkeep to time time in the and maintenance of said improvements. following The- deed contains the ex- pressed covenants and restrictions: That neither

“Second. the said of the first parts, any second nor their heirs or as- signs, owning, any or who at time own eighty-six ground, said shall or lots will at time any building twenty hereafter erect on said lots within boundary feet of line thereof, the front or will erect seventy either of said within feet of front (such upon, being of the same to be front deemed or to- TERM, 1925. Yol. Louis Trust

Pierce v. St. Union Co. parks), any buildings other than wards, first-class' dwelling constructed of houses, wood, brick, stone or iron, be at least ten to cost and worth thousand for the dollars upon proportion per fifty or in the each of lot, house greater frontage, any and shall nor not, cent more permit building, any principal erect or whose front will, Yandeventer nor erect Places; is not towards said will any part permit any of or or either of the lots, said slaughter-house, livery smith-shop, forge, any stable, foundry, engine, nail brass or other iron furnace, steam factory, manufactory any gunpowder, glue, or of var- turpentine, tanning, for the vitriol, ink or or dress- nish, ing preparing any skins, leather, or or furs, or hides brewery, public any distillery museum, or or theatre or place place or of or for the amusement, circus similar any any or trade or of animals, exhibition of business dangerous, neighboring or kind, noxious offensive any or tenement hotel inhabitants; house, tavern, or public any warehouse or or trade or mer- school, chandise. right privilege frequent,

“Third. and That places parks enjoy and and the before described use shall every each of the said be an easement attached to and passing appurtenant eighty-six land, and as there- lots of enjoyed and in manner aforesaid to be held to; by had, respective time owners from time to of the said respective occupying same, families and their lots, payments provided make the annual before shall provided regulations aforesaid, as for, and such observe but not otherwise. singular, covenants,

“Fourth. all That, expressed shall hereinbefore conditions and restrictions every said lots of and run each and attach to in the same and shall and estates land, to, titles occupant every binding owner be each parties the said and that neither forever; the same any parts, or nor their heirs them, the first and second any convey, assigns, or demise devise shall will or or any any part same at or or of the said lots either Sup. 311 Mo. —18. SUPBEME COUBT OF MISSOURI,

Pierce v. St. Louis Union Trust Co. except subject being hereafter, time to tbe said cove- obligation nants, restrictions, conditions and the perform tbe observe and or same; and whether expressed.in conveyances tbe be so deeds or other of said premises, absolutely subject shall tbe same to tbe covenants, said conditions and which shall restrictions appurtenant every run tbe with and be said land part fully expressly proper ifas contained thereof, obligatory every or conditions, covenants each and conveyance part concerning any of, contract and or improvements tbe tbe said or be made thereon. land agreed, Further Provided, “And It Is declared and parts, any if tbe of tbe that, first and second assigns, any owning heirs hereafter them, part eighty-six lot, of tbe attempt infringe, perform infringe or omit shall or to to any or covenants, conditions herein restrictions relating any premises to such lots or to contained other improvement or to tbe of tbe described, herein use and person any persons be lawful for other or same, it shall any part owning any tbe or thereof, other of said lots part, parties or of tbe third tbe tbe hereto .and also of being in behalf tbe for tbe and for said time trustees the other owners of said of either themselves and benefit prosecute pro- any them, or either of or lots, against person per- equity ceedings tbe or or in at law infringe, omitting attempting infringing or or sons perform covenant, restriction, or and condition such doing prevent to re- so, him or them from or either to infringements damages or for such or other dues cover provided that while declared and But it is omissions. be and restrictions shall conditions covenants, all such kept upon, binding must be observed and and and valid occupant every or tbe said land by and owner respect tbe part so much of said for and thereof, occupy may they own, time to time from or land as be person- yet they to be enforced are not that or control, parties their or ally against any hereto or heirs of tbe occupying assigns, or owners be or while unless Yol. 311] TERM,

Pierce v. Louis Union Trust Co. controlling part or one or more of such some perform shall have thereof, violated or failed to covenants, conditions and restrictions some them. agreed, It

“And Is Further Provided, declared and hereby that whatsoever created, trusts are and what- power rights hereby ever and conferred all the part parties said of the third shall vest in and inure to may major fully the benefit and of, be exercised part of them and their successors and the survivors major part of the survivors and last survivor of them their . successors. . . permit

“And, inasmuch as the rules law legal equitable, or the the trusts aforesaid estate, parties part, hereby the said of the third created and them their successors, vested in to continue and be during persons longer valid than the lives of the herein parties part, say, of the third named as is to until persons, decease of the last survivor those (anything Therefore Further “It Is Provided here- contrary notwithstanding) inbefore contained to the immediately the decease of the last survivor parties persons herein named as of the them, the (as trusts) part, actual third the trusts aforesaid legal equitable estate of third part property, of the said successors as trustees absolutely cease But that shall and determine. every of the aforesaid after that time,

ever charges shall restrictions covenants, conditions, applicable binding in full force and to and and remain prem- part every and land all and the aforesaid occupant every all owner and ises, and and only strictly every part but and thereof, land and said charges (and conditions, restrictions and covenants, as appurtenant running trusts), to and the but not as every part That, thenceforth lands and said thereof.. given power hereby the to, for, be lawful and it shall of the said times, at all time and from time to owners carry major part out, con- to them, or for the lots, object perpetuate general and interests of the tinue and OP MISSOURI, SUPREME COURT Pierce v. St. Louis Union Trust Co. improvements following, the said and trusts in manner They, majority to-wit: or the of a owners of the said agreement, adopt regu- lots, shall, vote or other such proper affecting may lations as think the said lots improvements parks and thereon and the said and places; ‘' regulations Provided such shall be consistent with object general previously existing and intent perpetuate improvements trusts, and shall tend to provided may for; herein and to that end from time to charge upon every time and each assess and or lot portion proportionate and of said such sum or may necessary proper paid by be to be amount occupant preserving, keeping owner or thereof for beautifying parks places order and the said and part of the which same, sums so assessed shall be due, owing payable be and collected such treas duly appointed pur urer as pose shall chosen or for that from time to time the holders and owners of the major part obligation pay lots, said and the shall be deemed assessments and taken to bind the own respective pay ers lots to the same to such treas personally receiving suing collecting urer for and description same in own-name, his but with the of Treas purposes, urer of Vandeventer Parks. And, these major part the owners of said lots of them shall power (after have from time to time cessation aforesaid) appoint trusts to choose or such treasurer provide proper compensation. aforesaid, and to for his powers And he shall have aforesaid, and shall also power apply moneys to use and collected, so place, satisfy discharge the first lawful taxes public parks affecting places, assessments keep good and in next the same in sub repair, any surplus apply stantial order and and to there beautifying improving of towards the same in such major part manner as the or the said owners being for the time time au them, from time to shall thorize direct.” TEEM, OCTOBEE 277

Yol. v. St. Louis Union Trust Co. Upon surviving the death of the last trustee named majority more deed, than then in said owners acknowledged 86 in said and addition, executed, agreement, recorded an instrument or caused to he dated reciting death of last 9, December surviv- 1899, July ing naming 1899, 3, trustee on treasurer Van- against making assessment each lot Parks, deventer an regulations adopting year certain re- for the specting Plaintiffs Place. offered such Vandeventer agreement in also evidence introduced evidence covering No. Vande- lease known defendants venter herein. Place, executed Said significant following provisions: lease contains the agree hereby Lessees covenant “The said assigns with said successors fol- Lessors, : lows . . . premises purpose for the use said

“That will running carrying therein and the business of on thereon hospital, or for the cure of incurables; institution agreed being are desirous that Lessors understood and premises, on in said shall be carried said business provision requiring said for that reason this busi- is inserted above this ness businesses mentioned premises will not use said Lessees lease, said except purpose, those covered other business . . the terms . hereof. agreed by and between further “It shall be if the Lessees evicted hereto reason that, premises, decree of court from the above-described carrying busi- the above-described from on restrained premises, during the first on said ness businesses period paid for said lease, all rent six months of this period premises re- first six-months shall for said or decree of if eviction funded Lessees, carrying prevent the Lessees court shall premises with- in or on said above mentioned businesses then one- lease, of this after date twelve months period year’s paid shall be half the rent for said Lessees. refunded to the SUPREME COURT OF MISSOURI,

Pierce v. St. Louis Union Trust Co. question whereas, “And there is a as to whether or not the businesses hereinbefore mentioned be car- ried on in and Lessees on the above-described premises covering will be a violation of the restrictions parties hereinbefore described, said here- by agree any any follows: That if suit or suits of brought against kind are Lessees, them, either of purpose enjoining preventing for the of them from carrying on either or both of the above-mentioned busi- premises, nesses or on said that event the hereby agree permit they Lessees will the said Lessors defend said suit or suits in the name of said right if Lessees. Lessors shall, desire, so have'the prosecute any appeals judg- any from solely ment or decree in name Lessees, but at the expense cost and of Lessors. agreed by parties

“It is further and between the knowledge hereto take that Lessees this lease with of all property, of the restrictions on said and that there ais question premises hereby as to whether or de- purpose carrying can be mised used for the on the hereinbefore business businesses mentioned and de- mutually agreed scribed, and is between the Lessors that if Lessees a final decree of court shall be ren- any during enjoining dered at time term this lease carrying from on Lessees either or both of the above- mentioned then businesses, this lease shall cease and determine. agreed is further

“It between the hereto that carry- enjoined if said or restrained from Lessees ing on either or both of said hereinbefore businesses men- they, against Lessees, shall have claim tioned, no for.any damage kind reason of their Lessors having enjoined carrying

been from so restrained or on businesses, business or or because eviction premises.” from said evidence that Vandeventer Place shows city three

Louis extends east and west about blocks Avenue the east to Vandeventer Avenue Grand TERM, Yol. Trust Co. v. St. Louis Union by Spring Di- Avenue,' or and is bisected

on the west The addition a north and street. south Place, vision the south by Bell and on on the north Avenue bounded Enright addition Each the 86 lots in the Avenue. frontage average hav- of the lots feet, of 50 a few an has frontage, greater slightly ing the lots or lesser average depth feet. Pursuant have an 143% platters plan expressed original owners private parks, containing trees shrubs, two addition, landscape gardening laid effects, were and ornamental through the center of the are still maintained out and ornamental direction, in an east-and-west addition Architecturally imposing ends. both fountains at entrance-ways gates and are still were built beautiful Ave- Avenue and Yandeventer maintained at the Grand separate gates iron addition, with nue to the entrances during roadways certain sidewalks, which, the and Sundays, night holidays are and on hours of the and privacy and residents. to the owners left closed to insure roadways public are con- and closed to traffic The are roadways gravel. parks, sidewalks The and structed addition the the of the owners maintained against the re- by system yearly levied assessments ade- spective all an maintain at times sufficient to lots, private gardeners, quate watch- care-takers and force of dwelling stone, and of brick all built houses, The men. park- upon respectively the central north and south face outbuildings ways, garages, abut and the barns respectively, Enright rear, in the which avenues, and Bell entranceways lots, rear serve as streets groceries ice and delivery of fuel, used the and are lighted by privately the addition is The the lots. Pierce, describes property M. Thomas Plaintiff, owners. high-grade residential addition “a character of occupants, exception property of two offensive with the endeavoring occupancies to oust.” now we are which respective use owners and families of The children play The parkways recreation. as a prom- the most include some the addition residents of COURT OP SUPREME MISSOURI, Louis Pierce v. St. Union Trust Co. widely recognized Louis,

inent citizens of St. known professional city. in the and social life civic, of that Among their number are Thomas M. Pierce, Samuel W. Pordyce, lawyers; King, and Goodman IT. Jr., Doctors City Wheeler H. Harvey geons former Bond, Health Commissioner, physicians R. Caulk, G. Mudd John and sur George nationally ; the late E. Kessler, known land scape city planner; architect and H. Lee, banker; William Niedringhaus, Thomas K. manufacturer; John L. Maur Clay an, architect; realtor; Henri Chouteau, Pierce, IT. capitalist; equally prominent. and others All of the exception, plaintiffs, they, without testified that or some purchased respective member of their had families, properties, relying restrictions desira the. grade bility high addition as an exclusive and Louis, residentialsection of St. testified all that the use hospital of defendants’ as a for incurables is obnoxious and offensive to them as owners and residents of said addition. testimony of Mr. Kessler, with his broad ex- perience knowledge develop- city planning expresses viewpoint perhaps clearly more ment, plaintiff He owners and residents. testified: “As high-class see Yandeventer Place is one of the few it, I residence areas the United an area States, bounded length streets, east-and-west; sides. about a normal block, block, block, St. Louis north- and-south, width, and east-and-west streets contin- uous with other streets both east of Grand Avenue and articulating west the central area Vandeventer, of not any anybody’s way; not in streets, with and therefore a property altogether prop- houses, in the residence which erty, single family properties, and residence faced side; garden inward to the the somewhat con- unusual really dition in the one States; United of the most together comfortable conditions. And that, it is hope protection against expectation the of invasion brought character, that business of us to con- question purchasing place. the in sider that is It TERM, Vol. .1925. St. Louis Union Trust Co. thing absence of that sort of that will drive ns out. quiet, quiet, say, is it seclusion;

Its is I in spite talk that been has made about noise. It easy city; within reach of the is private business center protected, privately privately street, cared for, every something sense for, word cared private place, that we do obtain not a outside such pro- and such restrictions are therefore essential to that tection which we permanent- demand, we which ask to be ly respect maintained.” With to the use of defendants’’ property hospital, destroy aas he said: “It would place beginning property a The homes. of intru- entirely sion, whether it one or the end other is place property, The [im]material. stands holdings. beginning not as individual of intrusion property of that kind that is, means there nowhere is the against alongside secured similar conditions of our own My objection property homes. I know from ob- is, experience handling things, servation similar parts country, properties similar in several that only very every be a time it would short when other property similarly used, will be therefore destroying entire our use as home places.” Pierce, an Thomas M. testified that ex-

Plaintiff, Company ecutive officer of defendant Trust had said, in plaintiff: conversation with “The Louis Union vice-president, Company, I Trust am is one of which Almira the trustees of the ranged Kehlor estate. We have ar- negotiated, offend, a contract as to so positive way definite we how, most know re- whether or strictions of Vandeventer Place and see you enjoin Peyton Carr, can them. Mr. T. a' co-trustee, me he had been advised that us, called and told longer that he be enforced and restrictions could no property, and wanted to Kehlor make lease of the put most offensive would be the lease terms as not be en- lease could so if the restrictions, joined, private enforced; then no restrictions could COURT OP SUPREME MISSOURI,

Pierce v. St. Louis Union Trust Co. hospital people you incurables, diseased. If can’t you stop stop anything. us, that on can’t Carr has peremptory agree notice served us that unless we private hospital to execute a lease for a them he probate proceedings, court, will move in the or take court as trustees.” have ns removed The co-trustee, defend- testimony, by positively ant Carr, however, his denied that he to, had made such statement or Company, no- served such upon, any tice officer of the Trust but ad- that he mitted had had several consultations with offi- Company respecting cers break of the Trust an effort to itself, test the restrictions. the lease exe- However, clearly defendants, cuted its recitals and indicates very purpose it conditions that made for the test- was ing validity and effect of the restrictions. M. Pierce testified that he had

Plaintiff Thomas premises patients defendants’ seen on carried or lifted into that he had at least two occasions and smelled drugs, disinfectants emanat- odors of or other iodoform premises. plaintiffs ing that from premises Several testified kept presented un- were not an well physi- sightly appearance. testimony plaintiff in the “incurables,” used cians was that the term meaning and includes medical lease, has well-defined commonly diseases, social al- such diseases as the. known lep- progressive cancers, tumors and locomotor ataxia, so generally rosy infec- like, and the and such diseases expended they had each tious. Plaintiffs testified improvement money large mainten- sums upkeep and in the homes care and ance of several roadways parks faith of the on the restrictive testified that Others would covenants of record. expended improvements further sums were raised the acts contentions of the the doubt respecting validity offending owners two applicability the restrictions. tending evidence offered Defendants show Enright Avenue, are laid on Grand tracks street-car Avenue, three of the Vandeventer four Avenue and TEEM, Vol. OCTOBEE y. Louis Union Trust Co. surrounding Place, streets Vandeventer and that said car tracks are used car cars are several lines and run frequent thereon; at intervals that one of the lots of the unimproved large advertising addition is and a bill board Enright facing is built thereon Avenue; that the house known as No. Vandeventer Place a was used Dr. from Moore 1894 to 1915, death, the date of a his for residence, but in which he maintained an office he where patients; received and treated that No. 12 Vandeventer year holding Place for a was used a for as Sun- day meetings; prayer School and of that a few the own- garages rented their for ers and stables the use and stor- age of other addition; automobiles of residents of the plants packing that odors from located some distance away sometimes invaded in the addition; homes that unoccupied some of the homes were and could not be rented; that some of older residents addition of.the away; many had sold their homes and moved that plaintiffs acquired years had homes in recent comparatively a small consideration; that at least one boarding of the houses had been used time a for a recognized generally house; that Grand Avenue was neighborhood known as a street; business and that the generally noisy pur- was and undesirable for residence poses.

The defendant Mrs. Julia Mahon testified that she graduate pharmacist previous- was a and nurse and had ly superintendent hospitals; been that of several she and using premises, her husband had been No. 6 Vande- venter Place, October, 1921, to the time of the hospital patients; a trial for the care incurable that patients two there were never more than in the house at one time and the time trial but one; at there was that premises; there never been children had about patients although neither to walk, that was able porches occasionally one had been onto the wheeled patients were chair; the house that both afflicted with a social that incurable skin diseases are disease; hospitals pa- incurables and sometimes treated OP MISSOURI, COURT SUPREME Louis Union Trust Co. v. St. suffering rule, tients therefrom as a offensive to are, occupy look and mother at; her husband defendant, pa- the lower as a residence and the floor the house changes occupy tients no structural floor; second ap- have pearance has the been made in the house and that still dwelling signs house and no a residence or placed upon premises. kind been respecting testimony Defendants also offered neighborhood; changed surrounding . conditions of by, that close some addition, outside of streets negroes; occupied by that, houses and tenements within manufacturing plants, are several there therefrom, short distance

storage garages, repair houses, places skating shops, rink ac- amusement, companying illuminating sign and a band, a brass gasoline-and-oil lot on a a vacant station, and which meetings; religious noisy the that street cars sect holds to noise and dust and dirt be make considerable cause that Place; thrown and into Grand blown Vandeventer surrounding the addition are and other streets Avenue motor, and other vehicles and a vast number of used parked along frequently are that such vehicles frequent ill-repute Grand and that women streets; proffered night. particularly of this at Most Avenue, testimony chancellor, the trial excluded where- was proof such facts. made offers of defendants expressed willingness to re- court, however, The trial changed respecting testimony conditions within ceive Place if itself, but little, of Vandeventer confines the proof any, offered defendants. of such was comparative proof as also offered Defendants with the Place, in Vandeventer the values of removed, the restrictions and with in force restrictions rejected by proof the likewise trial were offers of which chancellor. plaintiffs,

Judgment was in favor decree nisi or “perpetually of them, and each were defendants, and using permitting to or from enjoined restrained and Place, premises No. 6 as Vandeventer known be used TERM, Yol. Trust Co. Louis Union any part there- land or are situated same which buildings hospital building a thereon, as or the or long restrictions, institution for so incurables, charges of record now and conditions

covenants, in force each defendants, effect; that perpetually enjoined them, ducting restrained from con- be permitting maintaining be conducted premises or trade the business maintained said boarding, treating caring persons afflicted business or trade incurable diseases or dangerous, neighboring noxious and offensive permitting using or from used inhabitants, and purposes building buildings premises on said private dwelling per- other than a house, and from mitting proper family per lot to more than egress premises ingress and to into and parks places from the in the said Yandeventer ’’ Place. unsuccessfully seeking trial, a defend- After new duly appealed court. ants to this by appellants

I. It is contended restrictive deed from Vande- covenants contained William al., trustees, al. H. et do not venter et to Charles Peck prohibit property Yandeventer Place the use hospital hospital; “trade or business dangerous, neighboring in- noxious or offensive habitants;” that the covenants -,, ., -, , . . Interpretation. . uncertain indefinite, deed so and con- are flicting face. the other hand, on their that the On void occupancy use or respondents contend purpose any question than other premises in private the covenants and re- violates residence aof hospital for incurables is deed, of the strictions dangerous, and offensive to the noxious a “business proper within the construc- neighboring inhabitants” deed. of said covenants of the tion by appellants that, while the deed claimed also It is the 86 in owners of lots of the none prescribes that 286 SUPREME COURT OF MISSOURI,

Pierce v. St. Louis Union Co. Trust Vandeventer Place “will erect either of said seventy any within feet of the front of the same buildings dwelling other than first-class houses,” any covenants do not restrict of the -lots but one dwelling they house, nor do limit the number of families may occupy any which house or houses on the front seventy appellants urge feet of each lot. Furthermore, any may seventy-four that an owner of feet thereof in a lot use the rear

variety ways not inconsistent with may covenants deed and erect kind of building any way or structure thereon, without violating contending, the covenants said deed. In so appellants rely upon maxims“ejusdem generis” “ eccpressio est unius exclusio alterius.” While these proper maxims their the construction of give way written' instruments, nevertheless must to reason and common sense. Such maxims to be properly applied only ascertaining the true inten- parties. primary tion of The first and rule in the construction of deeds and contracts tois if ascertain, possible, parties. intention of the 2 true In. Dev- Property (3 p. Ed.) lin on of Real and Deeds Law says: text-writer “A. 1856, 990, sec. learned deed, stipulations contain contract, like other construing kinds. restrictions of various Courts to ascertain the them will endeavor intention of the parties, give will, to such intention effect when ascertained.” Berry

Again, in his standard work Restrictions Property, page quoting 52, 34, sec. on the Use of Real Kitching says: 180 Brown, N. Y. 1. c. from v. interpretation primary “The rule for the of restrictive gather the intention covenants is single by reading, simply words, clause of their agreement, but entire context, and, where the considering surrounding meaning doubtful, presumed they are to have considered circumstances [Clark v. met.” Devoe, minds N. Y. when McCredy, (Pa.) 129; 120; and S. Watts Jamison TEEM, 1925. 287 Vol. Pierce v. St. Louis Union Trust Co. Orphan Society, 85 295;

Easterbrook v. 1. Conn. c. Property, 735.] of Real sec. Jones’ Law Orphan Society, In Easterbrook v. 85 1. c. 302, Conn. judges discussing court, of that in the sev aptly rules of construction, eral well-known remarked: " adopted carrying were aid in These rules out the in parties; they cannot tention of be invoked to defeat it.” holding ap been the uniform

Such has of our own pellate courts. In Kenwood Land Co. v. Hancock Inv. App. 169 Mo. 1. c. Co., 722, the court said: “When cove in nants the nature restrictions on the fee are rea-' policy sonable and within the law, are valid. Eng. Ency. Ed.) 513.] (2 clearly & Am. Law [6 When expressed, description strictly covenants of this bewill equity injunction. enforced and court of will decree an [Lloyd Building, page Although 149, 288.] sec. re yet fee favored, strictions on the are not when the in parties tention of the clear, courts will enforce them. Hawley, [Hutchinson v. 145 Ill. Ulrich, 336; Kitchen v. App.. 497.] Mo. The intention of the must be language determined from the of the covenant itself surrounding considered connection with the circum (Ibid.); stances at the time the covenant was made or, language said, as it is sometimes from the of the cove light nant considered itself in the of the entire context containing Hawley, [Kitchen instrument it. v. App. 497.], 150 Mo. Such covenants must be considered reference to the situation with affected present prospective and its use as well to the lan guage employed expressing [St. covenant. Louis Deposit App. 388.]” Kennet, Bank 101 Mo. 1. c.

In Koehler v. Rowland, 275 Mo. c. this court inserting “Doubtless the intention in said: the restric- ’ plaintiffs prevent negroes tion deed towas from com- premises ing on the It as tenants. must considered in view. The and technical narrow construc- suggested respondents, against tion such manifest (cid:127) not accord intention, would with the decisions of this COURT OF MISSOURI, SUPREME

Pierce v. St. Louis Union Trust Co. passing upon considering spirit court purpose of instruments of this character. [Sims v. Mo. 707; 252 Garrett v. 252 Brown, 58; Wiltse, Mo. 1. c. 137.] grantors 249 Morris, Mott v. Mo. If the fail to ex- completeness press precision, contract with their and but clearly appears intention, nevertheless, the from in- the spirit purpose if its strument; manifest from a given of as consideration the instrument a whole, it will be interpretation in an accordance with such intention.”

Again, App. 114 Dixon, in Sanders v. 1. c. 253, Mo. Appeals of the profess said: St. Louis Court “But all courts give plain par- to to effect the intention of the imposing in such up restrictions, ties and should live to good profession seeking faith, their of instead in- interpretation by genious of subtleties which to evade fairly shall endeavor to deal restrictions. We with the interpreting before them us, covenants ployed, the em- words light existing read in of facts the the when the imposed,-and objects were the restrictions to be at- tained.” foregoing

Having primary in mind cardinal the proceed to rule of let us construction, examine the four question may gather, corners of deed we if possible, respecting of intention the uses lots in which the several Yandeventer Place be plan put. original deed, in furtherance of provides laying por- owners, for the out of central private parks, tion of the tract into two with an elaborate shrubbery, with scheme of adornment trees, fountains including private driveways art, and other works by all to be maintained method of sidewalks, assess- proportionately against platted ment levied lots ‘‘ provided right priv- that the of the addition. It is ilege frequent, enjoy use and before-described places parks shall an easement attached to each every eighty-six pass- land, the said lots ing appurtenant had, and to be thereto; held and enjoyed manner from time aforesaid owners respective respective and their lots, to time Yol. 311] TEEM, OCTOBEE

Pierce v. Louis Union Trust Co. occupying pro the same;” furthermore, it is families vided that the trustees shall “permit, suffer and allow from owners, time, owner time to of the said any eighty-six part any lots, or them them, respective proper or the tenants under families respective exceeding (but them and their families respect family lots) or in each the said ingress egress parks, have free to and frequent, enjoy of them, either and to use and same common resort and recreation.” The prescribes any deed then that none of the owners at ground eighty-six time of said lots of or will at “shall building hereafter erect time on said with twenty boundary feet line of the front thereof, will upon seventy erect either of said lots within feet of' the (such being upon, front of to be the same front deemed or parks) any buildings towards, said other than first-class dwelling wood, constructed of stone or houses, brick, iron, cost ten and be worth at least thousand dollars proportion fifty upon for per the house or the of lot, each any greater frontage, more for not, cent and shall permit building, principal any nor erect or whose will, front not Places; towards Vandeventer will nor permit any part any erect or or either the said of of specified buildings ending lots” certain kinds of or uses, any following or with the clauses: “or trade of business any dangerous, neigh noxious or offensive to the hind, boring any house, inhabitants; tavern, tenement hotel or public any school, warehouse trade (Italics ours).- merchandise.” entirety, An examination of the deed in in our its opinion, part clearly discloses the intention the original question the tract land to create owners of high-class, exclusively residential district, therefrom occupied respective by the homes which are mem- family. single clear bers one This evident-inten- by doubly tion certain the elaborate and com- is made prehensive plan original owners for the creation the parks, roadways, ornamentation, foun- sidewalks, Sup

3X1 Mo. —19. COURT OF MISSOURI, SUPREME Union Trust Co.

Pierce v. St. Louis forestry, proper tains all limited to use of family per prescribed method of lot; assessment positive against for their inhibition maintenance; any building the erection'of other than first-class dwell (in ing parlance, houses common when not otherwise qualified, conveying the notion of a home; idea or San 247) App. ders v. 114 Mo. to cost not Dixon, c. less prohi $10,000 lot; than the house each against permission bition the erection or thereon not only specified of certain but businesses, trades or also dangerous, “any nox hind, trade or business of neighboring ious or inhabitants.” offensive to the construing In covenants of the deed, the restrictive development plan we must bear in mind that the original the deed owners conceived and ex- was apartment long ecuted in modern before the family public (so-called) garage, house, hotel, moving-picture repair the- automobile theatre, oil-and-gasoline filling-station service station, and had come into or existence. rare and use With com- perspicacity, original foresight mendable own- miscarriage prevent plan in order to of their ers, ' development, guarded only home of exclusive against recognized the then certain well-known incompatible annoyances and inconveniences with the family looking but, to the far life, home distant future annoyances, when inconveniences and new unknown incompatible family home life, alike would wisely likely spring pro- also existence, into use 'any danger- against hind, trade or business vided noxious offensive future owners of the ous, platted respective in the addition. Orphan Society, in said Easterbrook v. is well As “ applicability another rule of universal 1. c.

Conn. parties importance primary the that, where have practical placed upon many years construction open meaning to covenant, a restrictive two con- the strong proof' in the absence of will, this structions, go contrary far to establish this as the con- intention, Yol. OCTOBER TERM, 1925.

Pierce v. St. Louis Union Co. Trust parties.” by original struction the intended the While express owners have failed to their intention with completeness precision they possible the had annoying known the exact nature of the uses property sprung- up years, which in more recent property nevertheless the Place, owners of Yandeventer very down to the at time of the institution of the suit bar, their their re- have, own conduct and use of spective properties put single family homes, upon practical own meaning the construction the re- strictive covenants used the deed in under which (as here) strong hold In title. the absence convincing proof contrary part of a the intention original accept applicable of the we must' owners, practical given the construction to the covenants present Upon owners themselves. the death of the surviving last trustee deed, named owners majority of much more than a bare of the 86 lots the addition met and elected a treasurer and executed, acknowledged and an caused to be recorded instrument evidencing carry plan their intention to on the of the original platters adopted owners and addition regulations affecting properties consistent with the development. original plan Gathering of use and parties from the deed intention itself its en- together proper tirety, consideration of the sur- rounding practical circumstances and the construction placed the restrictive covenants themselves, we arrive at owners conclusion that the the clear intention of the whole manifests high-class, exclusively Place a make of Vandeventer dwelling residental district and limit use each single family. lot or home each house We nothing conflicting uncertain or indefinite, see inappli- to render them void restrictive covenants cable. hospital

II. aIs for incurables a “trade or business dangerous, neighboring noxious and offensive

292' MISSOURI, COURT OF SUPREME v. Louis Union Trust Co. St. i^itants” the inhibitions the re within Hospital Vandeventer Place strictive covenants deed? We so conclude. Lacey, a

In 48 L. J. lease con 339, Bramwell Ch. part carry the lessee not tained a covenant on premises “any trade, the demised or business anything dealing or the nature thereof, whatsoever, thing may party or to or act which or be suffer annoyance, damage, injury, prejudice grow to the premises.” neighboring Said inconvenience plaintiffs accordingly say M. “The R.: Lord Jessel, hospital, converting receiving into a this house patients breach of the covenant. there, is a The first ‘in question a ‘business’ or of a is this nature bus is, reality apothe it It is in an have no is. I doubt iness?’ place, cary’s In the it ... next or is business. it ‘ thing grow annoy be or act which an injury, prejudice damage, or inconvenience of the ance, premises?’ neighboring The terms of the are covenant they largest comprehensive; very known to the are appears to me be suf . The evidence law. . . persons neighborhood to show ficient annoyance, already inconvenience in suffered danger possible jury, infection is and that right complain. Upon which have the matter of opinion grounds, that the defendants have I am these plaintiffs and the covenant, injunction breach of the committed an entitled to with costs.” therefore Hospital, Supp. N. Y. Babies’ 1. c. Gilford v. In almost covenants were identical restrictive Said the court: “This is an here under review. those perform. agreement express defendant must If protect sufficiently adjacent in its terms to broad is not designation nothing omniscient short of then owners, by legal not be dimished The should so. effect will do clipping, argumentative but its terms refinement interpreta- just broadening yet not a meet with should invariably has court enforced such . . . tion. contiguous character of save when covenants, Yol. OCTOBER TERM, 1925.

Pierce v. Louis Union Trust Co. wholly changed original has use from the design. I am read a first unable to this one without thought preventive application. of its Neither does the legal The rule of noscitur a lesson its force. sociis hospital, injurious dangerous, even if and of is way livery in the as a tenement fensive, house, same butcher-shop, brewery. The rule calls other only stable, injury or offense, in the nature of the similitude conveyance. particular its manner or means of not the may bring and con crowd, turbulence, The tenement may hospital. give tagion; The others so may this so well.” senses; offense to business purport Miller, effect and are Rowland v. Of similar 513; and Hibberd 93; Foss, Evans v. 194 Mass. N. Y. 235 Pa. Edwards, v. “incur- tends to show that the term

The evidence persons suffering from the well-known includes ables” leprosy, ataxia, also locomotor diseases, cancer, social patients harbored diseases. two similar and other hospital victims social diseases. in the defendants’ pitied patients kindness are to be and human such While they properly cared for and ministered demands that every the fact remains that are, nevertheless, to, self-respecting outcasts. No term, of that social sense family parent of a would desire to his or head family, live of his adult or even the members children, hospital. hearing sight a Aside from within danger possible ever-present mere infection, the presence institution their midst is an abhorrent of such neighbor- home-and-family-loving of a to the sensibilities premises question community. The use of the hood positive violation of restrictive cove- a clear under which defendants hold title deed nants design possession. the fact structural does that the Nor changed- premises has not been that of of the dwelling-house, further fact that defendants nor premises portion Mahon use premises less a viola- the use render residence, Vaughan [Barnett v. Institute, tion of the restrictions. SUPEEME MISSOURI, COURT OF Pierce v. St. Louis Union Trust Co. Neidlinger Supp.

119 N. 45; Y. N. Y. v. Association, 200 Supp. 852; 115.] Baumert 235 N. Y. Malkin, Appellants urge

III. that the restrictive covenants expired July of the deed the date of death 3,1899, surviving of the last trustee named in do said deed We. provides clearly

not so read deed, all “that from and ever after that time, Termination of Trust: Continu anc[ every covenants, of the aforesaid (cid:127) (cid:127) , ,. , anee Covenants: . charges restrictions conditions, shall Perpetuities. applicable be and remain in full force and binding upon every part to and all and of the aforesaid premises, every land and' owner occupant every strictly part thereof, said of land and but only charges and covenants, as restrictions conditions, and (and trusts), running appurtenant not as but with and every part lands and thereof.” Futhermore, original the deed the covenant that the owners, contains convey every the platted will Vandeventers, 86 each and the of subject lots to said covenants, conditions obligation perform restrictions, and the to observe and the singular, all same, and the “that, covenants, expressed conditions and restrictions hereinbefore shall every attach and run with each of the of said lots to, land, and titles and estates in the same, and. every binding occupant shall be each owner and of the same forever.”

Such restrictive covenants do not offend rule against perpetuities, since the covenants at time terminated unanimous of the consent in present interest; interests and are no more subject against perpetuities rule than are common- [Gray Against Perpetuities law easements. on Rule (3 Ed.) App. 280; sec. 158 Noel Hill, Mo. 443; 1. c. Koehler v. Rowland, 586.] 1.Mo. c. urged

IV. It is that there has been a waiver of part covenants of lot the resident owners because, a few of had forsooth, resident owners TERM, Yol.

Pierce v. Louis Trust Co. Union premises out-buildings rented the in the rear private garages; other use residents of the addition for one that, the evidence to show because tends . waiver out-buildings, non-resident of these a appar- although kept livery addition automobile, has seeking ently patrons district; from outside the his family years physician ago his some resided with “family good and, one of doctor” the homes like old years gone by, forgotten maintained now almost patients an he to his home, office his where ministered professional neighbor- presence and denoted in the his hearing sign simple hood on the house or officedoor, sign has advertising his bill-board name; and that an facing Enright been erected on the vacant Avenue, sign, use- serves a which however, addition, purpose other keeping dogs ful intruders, cannot small district. animals as without the We well, proof regard seriously these facts indicative covenants waiver abandonment the restrictive part plaintiffs. urged appellants Finally, V. it conditions affecting .changed Vandeventer have so Place since establishing the recording execution the deed utterly destroy purpose restrictive covenants as to inequitable of suchrestrictions and to-make changed injunctive longer by granting to them enforce conditions, assign error point, relief. On this appellants refusing action the chancellor in evidence in the trial tending changed defendants to offered show conditions neighborhood Place Vandev enter in and about the comparative tending refusing and in evidence to the show Place, values of in Vandev enter with the restrictions in force and with the removed. restrictions evidence While such was refused defendants made nisi, proof, appeal due offers of so that we have the benefit on of the substance of such evidence. offered

It is true that such evidence tends to to some show, changed surrounding extent, conditions Vandeventer SUPBEME COUBT OF MISSOURI, Louis v. St. "Union. Trust Co. always eager its Place. Commercial business, to extend open its battle lines throw into residential districts and family marts to drawn near secluded trade, has to this moving-picture addition. Theatres, a roller-skat- houses, ing places rink and other similar of amusement sprung up by. Transportation recreation have close customary, as is usual extended facilities, have been city. in order to residential reach The sections oil-and-gasoline filling-station, eager reach ever to family render convenience to means of sufficient possess purchase operate an automobile and to fuel strategic has established it, itself on an available storage plant dry-goods manufacturing site. A and a notwithstanding warehouse are not far distant. But surrounding assaults of commercial business neighborhood, the evidence aas whole rather tends to successfully that show Yendeventer Place itself has with- army stood the advance of far so has commercial family single maintained exclusive a its character as highest Many residential district of the families class. generation lived the addition for more than many passed of the homes have into the hands generation. exception, plain- second Almost without tiff residents addition of the 86 and owners quiet testified at the trial and seclusive character of the district has been maintained and fair bids yet continue to exist for some time to come. While city metropolitan those of us familiar the life of the noiselessly know that street not run do and their cars operation accompanied necessarily yet, is dust, some after these little all, inconveniences are common to great growing city. odors inhabitants of meat-packing plants, sometimes offensive as prevailing are certain are, to wafted be winds, no home, business, either, distant however far plants per- from the is immune from themselves, meating presence; also a nuisance, if such it properly called, common to all who choose live in large city, whether in elsewhere. Yandeventer Place or TERM, 1925. Yol. Trust Co. Union v. St. Louis our appellants has directed Diligent counsel foreign mostly of decisions,

attention to numerous appellants’ support jurisdictions, to are claimed which say that to point. for us It is sufficient contention this inappli- carefully and find them we read them all in the case us circumstances before cable facts and to the Practically decisions bottomed at of those bar. all College upon Trustees of Columbia the rule announced clearly case find that v. N. Y. 311. We Thacher, 87 been railway distinguishable. had an elevated There, of defendant’s front constructed the street loading station large platform property, proximity to extending in close out the sidewalk over flight leading steps there- building defendant’s platform defendant’s proximity to to. the The inspection the building interior of the rendered ocular easy inquisitive look to to for but observers, house quite properly that was found to see. The court quietude destroyed obviously privacy and conditions the premises for residen- unsuitable of the and rendered them wholly clearly, tial situation different use— existing All cited the instant cases case. appellants principal because that, were decided directly affecting premises, changed conditions im- covenants would the enforcement the restrictive hardship upon pose great defendant and unreasonable causing any substantial to the without real or benefit plaintiff. sub- where The rule is otherwise established complainant by reason inures stantial benefit covenants. the enforcement of restrictive Court v. 139 Y. c. Miller, In Rowland N. Appeals distinguishing of that at hand state, case College supra, re Thacher, from that of Columbia " principles applicable : marked of that are not case appeared facts of this. There it contract plaintiff sought longer no which to enforce was value to and that its enforcement it, would result great damage without benefit defendant, anyone. right occupy plaintiff her Here the has SUPREME COURT OF MISSOURI,

Pierce v. St. Louis Union Trust Co. occupation in house as a residence, to have protection agreement. of the restriction She has never agreement violated the herself, consented to or au- encouraged thorized its violation others.” In Landell Hamilton, v. 175 Pa. St. 1. c. 336, it is long said: “As as such restrictions are unlawful, not purpose argue they seriously to no to is retard improvement city. of the We can no more- strike creating down lawful decree a restriction an ease- compel ment, then we can the lot owner to erect build- ings style in accord with best of architecture. . . . We concede, some cases decided other states apparent conflict our decision. But what uniformly this court held, has holds, is, now notwithstanding change where the restriction, buildings, use of the land and still substantial is value equity to lot, the dominant will restrain its if violation, promptly sought.” relief, here, is as Of similar effect are Lattimer v. 72 N. Y. Livermore, 174, and Brown v. Huber, 80 Ohio 183. just uniformly

The rule stated seems to have been applied by appellate followed and our own courts. In Spahr Cape, App. v. 143 Mo. 1.c. the St. Louis Court Appeals said: “All that the evidence tends to show adjoining loop, is that the this do the lots here more involved, is valuable business than for purposes. It residence does not convince us that it has purposes, become unsuitable for residence so does not come cited. The within the three cases mere fact purpose that it more or suitable for the one is valuable enough justify than the other is not a court over turning nullifying covenants in the solemn principles deeds.” re Those interested find lating ap to restrictive covenants further discussed and plied Thompson App. 426; in Noel v. 158 Mo. v. Hill, Langan, App. App. Hazard, v. 187 Mo. 172 Mo. 64; Reed App. 557; Fete 547; Miller v. Mo. Klein, 177 App. Foerstel, Mo. 75. TEEM,

Yol. Trust Co. Pierce v. St. Louis Union re- Nor the trial chancellor erred in do we find that comparative affecting fusing in evidence the values question, property in with and the restrictions without just controlling question, have stat- removed. as we ed, whether the restrictive covenants are of sub- plaintiff or value lot owners. stantial benefit they are The trial court found that and we Comparative finding. at a different have not arrived Values. apparently content continue Plaintiffs are single properties family homes, their several use They past. been have done converting tempted use, them to other lured into despite and the afforded of commercialism the demands Apparently gain profit. opportunities they re of light viewpoint properties gard in their several truly poet wandering has so and homeless who of place like home.” it ever there is no humble, “Be so said, point express our own better views We cannot approval by quoting with Noel v. us than before App. c. is 158 Mo. l. whereat it said: “Coun Hill, great argue these restric strenuousness sel the business and restrict are hurtful business tions say going far more of so as one or his witnesses area, City Louis,, in of for in Place that Yandeventer pur business be much more valuable stance, would may poses private That but be, residences. than we have no con a of utilitarianism with which kind is thing money of value a . The or commercial cern. . . things always There are some a test of its worth. not is city to be meas of a and of men that are'not life money. Niagara by man who looks at mere ured with the Yellowstone, Park, or Yosemite Falls, measuring of the water mere of value its idea power of of board feet, the others number grand good found, there has lost a trees measure, glory Louis that life. It is to the of'St. she deal out of only city preeminently city but ‘a homes, not a much contributed to beautiful.’ No factor has so homes reputation only as has fact, but as this, ' OF SUPEEME COUET MISSOURI, Louis Union v. St. Trust Co. great number restricted blocks, restricted residence They great city. districts. are scattered over this Supreme well our court, Court, This as as has at all recognized times while these restrictions be, private prop- extent, to some restraint the use erty, larger aspect, great they are, considered in their community large, to the at and, benefit ing instead of look- jealous eye attempting them at with a pick creating flaws in the covenants them and to construe always them deeds, out of the have held that are to preserved long and observed and sustained as as that rights can be done without violation of the of contract unduly restraining right of alienation and with- dispossessing any out man that which deed and con- ’’ tract is entitled to hold. he glean have

We endeavored to the facts sur rounding applicable circumstances to the restricted addi question brought by lengthy tion us and volum apply record, inous and to those facts and circumstances principles governing established law the en of restrictive forcement covenants we read them many by respective from the cases cited counsel. In so doing, findings we have accorded due deference to the long trial chancellor, the learned has been who a resident city knowledge of St. Louis and has means of respecting surrounding information conditions the re necessarily findings addition denied stricted to us. Our upon and conclusions whole record do not differ those of learned below, and, chancellor no reversible being judg error disclosed the decree record, accordingly Lindsay, ment nisi is affirmed. C., concurs. foregoing opinion PER CURIAM: The Seddon, adopted opinion the court. All C., of judges except concur, Woodson, J., absent.

Case Details

Case Name: Pierce v. St. Louis Union Trust Co.

Court Name: Supreme Court of Missouri

Date Published: Dec 22, 1925

Citation: 278 S.W. 398

Court Abbreviation: Mo.