*1 v. Pleasant. Toothaker Jeffry Pleasant, C. Marie and Luther Perkins Appellant. One, 1926.
Division November Injunction: If Real Estate. Title APPELLATE to 1. JUJEtlSDICTION: estate, judgment directly this affect title real must to to be rendered the defendant, enjoin equity a jurisdiction; appellate to and a suit has court estate, ground the negro woman, occupying the described real from grantor, plaintiffs original have and defendant from the under which deed conveyances grantees adjoining lots, a by the mesne become grantee to and part the for himself that “as a of the consideration covenant assign assigns grantees rent agree and not sell or successors and years any negro period least a a of. at fifteen of said to for estate, date,” incidentally, directly, where involves title to real and this alleged and in haec verba and it is both restrictive covenant set out such lot, upon the and a title of the it runs with burden denied the the necessarily adjudged plaintiffs, for decree basis of the decree since such nature and extent defendant’s title. In a Restrictive Test: Benefit to Land. 2. CONVEYANCE: Covenant: deed, equity the covenant contained in a suit to enforce restrictive inquiry imposеd upon primary is whether the restrictive use was by by plaintiffs, land and if defendant for the benefit of the owned enjoined; owned answering by occupancy was not its defendant cannot be and in it the restrictive covenant must be creating inquiry, parties original the the intention of deed sought, language from the the covenant both itself, language light its when read in the of its and of context surrounding circumstances when the covenant was made. -:3. tive covenant in a deed that “as a -: For Benefit A of Grantor: Remote restric- Grantees. part grantee of the consideration the for assigns grantees agree himself and for his successors and not to sell assign any negro period or rent of said for a at least years is, contrary proof fifteen from this date” in the in- absence of a tention, having retained by grantee be considered as been made for benefit grantor by grantee or for land him. And where con- veyed part grantee, conveyed plaintiffs, of the land to one who in turn defendant, part grantee, and another a another turn who negro conveyances woman, none of mesne restrictive mentioned the covenant, imposed such restrictive was not on defendant’s lot lots; plaintiffs’ original the benefit of whatever be the covenant, grantor to enforce the cannot avail themselves of right, privity, estate, because there is no either contract or between they covenantee, original grantees and such them are not shown to be by him, land retained nor is it that he shown retained land in the vicinity. 4. -: -: For Benefit of Land Retained Burden Grantee: Proof. The grantor absence of evidence that the retained other land in vicinity was made for holding will not authorize that the restrictive covenant in his deed grantee grantees. the benefit of the and his remote grantees rests burden the remote aof seek land who enforce the grantee restrictive covenant part, a remote of another show, language either of the covenant itself or extraneous facts circumstances, restrictive covenant contained in the deed was and not for by it, intended its for the benefit personal benefit of its or for the benefit of land retained him at the time. oe Missouri, Vol. Conveyance Tract: 5. CONVEYANCE: Restrictive Covenant: of Entire containing Restriction Grantee. Where .in grantee acquired the entirе restrictive covenant and his immediate tract, the title to and neither derived from the each in turn had benefit *2 convey any part the entire tract or thereof free from whatever, except against original grantor covenantee, restrictions standing privity him, or one in his stead and in with and the restrictive imposed upon grantees by covenant was not their remote made deeds which no reference to it. Subsequent A re- -: -: Continuance Deed Grantee. 6. grantee tract, by subsequent a cital in the deed made of the entire it, subject part all a “this deed is made incumbrances she affecting premises,” said described cannot a con- of record tinuation, strictive above be said to be part, tract, for the of the rest of the a re- benefit of grantor, covenant contained in the recorded deed of her remote already parted had where she at the time with her interest in the rest of the tract. Juris-Cyc. Appeal Corpus Error, J., 125, p. References: 3 C. Section 369, n. p. 30; 128, 372, Courts, 1085, p. J., 513, p. n. Section n. 53. 15 C. Section Covenants, 87, 88, 89, J., 65, 1249, 73, p. 35; 90. 15 C. Section n. Section 1254, New; 76, 1256, 47, 48, 49; 56; p. Section p. 1257, 54, 55, n. 23 Section n. n. 1259, 80, p. New; 85, 1261, 188, p. New; n. 96 Section n. 19 Section 1299, 1, 2, 3; 1300, 21, Deeds, p. n. p. J., 460, 396, p. n. n. 22. 18 C. Section. 38, 39; р. 397, Injunctions, J., 320, p. 73; 50 207, n. New. 32 C. Section n. 579, 348, p. Section n. 29. Appeal from Jaekson Circuit Austin, Court.—Hon. James H. Judge. (with directions).
Reversed
Cleary n <&Barnett and
appellant.
John B. James for
(1)
language alleged
The
to constitute a restriction in the deed
Myers merely
agreement
Hall to
Hall
personal
is
a
between
Myers,
running
not
covenant
Estate,
with the land. Devlin on Real
p. 1858;
p. 396,
18
J.
460; Berryman
Savoy Co.,
C.
sec.
v.
160
Hotel
559; Kelly Hall,
(2)
Cal.
v.
though
G. G. Bay N. respondent. Devault for (1) The covenant merely personal agreement was not between Hall and Myers, destroyed nor for this reason was the Myers conveying act of Kinley renewing expressly to Bessie without agreement only A grantee agreed, it. solemn was made whereby *3 himself, successors, assigns grant- behalf of but on behalf of his and any ees, they, sell, assign he or or of them would not or rent property negro years of said to a within that date. The fifteen from purpose kept Godfrey Hamp- of the should be in mind. v. M,o. ton, App. 157; App. 148 v. 169 Co., Kenwood Land Inv. Co. 715; Hawley, App. (2) 150 Mo. 497. was no evi- Kitchen There vicinity showing prop- dence that Hall retained therefore, conveyed Myers. not The was for his erty he of land retained benefit, to, or as is sometimes referred for the benefit and, grantee, as by then for the benefit of the him. must hаve been assigns grantees. The recites, successors, and for his the covenant (3) grantees. agreement grantee burden of the property Kinley conveyed west as that inasmuch It is contended or re- it was waived words of the restriction repeating the without misapprehension. to a If must be due linquished. This claim nothing was there purely personal to the was covenant personal was extent hand, if covenant waive. On the subsequent it in a claim, failure to recite land, as we it benefited conveyances omit- it. Mesne remove operate to not conveyance could it, failing to refer to where covenant, or language ting the upon the a burden imposes or a benefit that confers is one cove- the effects of the land from release operate to land, do Johnson, 170 49.Mo. Johnson restriction. nant or (appellant enjoin defendant equity SEDDON, C . Action improved real certain occupying from woman, negro is a here), who as the and described by her Missouri, owned City, in Kansas property addition Dalcoulin, platted in2, 4, block 3 and lots feet west 42% oe Missouri, You. city, in said selling, renting leasing negroes, from same to or otherwise permitting by occupancy the use or of said- negroes, September here) until 28, (respondents 1930. Plaintiffs are persons white and are the (except record owners of the east 5 feet taken and for purposes) 4, used street said lots block in2, Addition, adjacent Dalcoulin lying defendant’s immediately temporary injunction A issued, and, east thereof. hearing by final merits, injunc- on the a decree was entered monetary judgment permanent tion was made and a was awarded alleged sum $776.25 defendant loss Defendant, customary property. pre- rentals from their after the liminary steps, appealed has to this court. us, facts, gathered
The salient are the record before these: as 4, Addition, platted, Lots 3 originally block Dalcoulin length depth Subsequently, had a feet. the east five feet of Brooklyn public a part said lots was dedicated for taken or use city. question are at the northwest Avenue in The lots situate Brooklyn Brooklyn corner Avenues. Avenue Howard is an east-and-west street. street, north-and-south and Howard Avenue Avenue, while Brooklyn width, frontage, The of said lots is-on short long on Howard Avenue. depth, frontage, of the lots is city rectangular question oсcupy the southeast corner of block, by Brooklyn Avenue, On the south bounded on east and on the north Avenue Avenue, Ploward on the west Garfield Twenty-fourth Street. originally 3 and tract, is, said lots
The entire all of 28, 1915, said Walter September M. owned one On Walter Hall. said lots Hall, the whole wife, M. Hall and his Anna O. *4 Myers for a valuable Fay to warranty day, the same one deed dated and wife from Hall expressed in deed. The deed said consideration a the con- “As of recital: Myers this covenant or contained assigns and grantee for himself his successors sideration, the a property to assign said grantees agree not or rent to sell ’’ ac- This years from this date. negro period at least fifteen deed, which quoted or covenant said recital hinges upon the tion City, at Kansas of Deed’s office in the Recorder duly was recorded Missouri, 26, 1915. on October County, Jackson a deed Fay Myers and delivered 1915, executed 27, September On 4 was 3 and of said lots whereby feet east trust, 94% Letter Association of for the National Keirnan, F. trustee Joseph secure to said America, corporation, United States of Carriers of de- notes therein promissory certain payment corporation (cid:127) the restrictive no reference makes trust deed This scribed. Hall and warranty deed in the contained covenant or recital n Pleasant. Myers. duly wife .to October Said deed of was also on trust recorded 26, 1915. September- Myers two 28, Fay
On tbe whole of said 1915, warran- lots, Kinley by L. parcel land, as one tract or one Bessie subject to ty conveyance is deed, which “this made deed recites that affecting but otherwise property,” all of record said incumbrances said the deed makes no reference to restrictive 26, duly on October also recorded deed. This deed was Hall property, At M. owned the entire the time Walter conveyed to was is, 4, property all of said and before said awith Myers improved by Myers Kinley, L. Bessie Brooklyn large faced east frame or fronted house, house prop- Kinley acquired entire Avenue. Bessie title After L. erty, lots, platted said she moved the consisting of the whole of two lots, frame house feet of said two so onto west 42% Upon house then on Avenue. the east faced fronted south Howard three-story Kinley feet lots, of said two L. erected a Bessie 99% apartment seрarate building, containing brick three-room twelve fronting Brooklyn garages basement, east on apartments, three and a Avenue.
Thereafter, Myers September deed of Fay trust executed on 27, 1915, conveyed thereby, viz., was foreclosed and the east of said 4, feet lots 3 was sold at trustee’s sale 94% being on 5, 1917, purchaser held October at such foreclosure sale beneficiary trust, named said National Association deed of said America, subject Letter Carriers United States of to the said Kinley Bessie L. redeem within the one year -period prescribed by statute. S. see. Bessie [R. 2222.] Kinley L. never of redemption exercised her within statu- tory period aforesaid, Joseph trustee, F. on Novem- Keirnan, 29, 1918, ber pur- executed and delivered trustee’s deed to the said at sale, chaser duly foreclosure which trustee’s deed was recorded on December 1918. The trustee’s deed makes no reference restrictive covenant contained in the deed from Hall and wife to Myers. Subsequently, in description prop- order to correct the erty conveyed by intended to be the said trust and trustee’s deed, Kinley husband, Bessie L. September and her 20, 1920, ex- ecuted аnd quit-claim delivered a deed to National' Association of Letter Carriers United purchaser States of America, the at the sale, conveying trustee’s corporation to said all of the east *5 Addition, lots 3 2, 4, block Dalcoulin except the east five Brooklyn quit-claim feet said lots in Avenue. said The deed re- cites that it “to misdescription is made correct in the amount of ground conveyed originally to the National Letter Carriers of the
1244 Yol. Missouri, oe grantors by trust a deed of America, under United States of being property. It the same by a deed to trustee’s herein and later only land de- not herein to deed grantors the intention deed, an additional but of trust and trustee’s in said deed scribed making' instruments, said ground omitted five heretofore feet Dalcoulin, 4, block.2, 3 and of lots conveyed feet land east 99% above re- in instruments feet, described instead the east 94% 4 3 and sub- said lots feet of title the east to.” The ferred 99% acquired conveyances plaintiffs, who by sequently passed mesne conveyances make said mesne April 8, on 1920. None of title thereto Hall deed. to the restrictive covenant reference Kinley L. and husband 26, 1918, On Bessie March Addition, to onе 4, in Dalcoulin- 2, of lots 3 and block west 42% duly by warranty was recorded on deed, which James L. Donnell April recital that “this deed made 1918. Said contains the affecting subject said above described all incumbrances of record ’’ no to the restric- estate, but deed makes reference real otherwise said Hall The title the west tive in the deed. covenant contained conveyances subsequently passed mesne feet of said lots Pleasant, Jeffry acquired Sep- who on defendant, title thereto conveyances tember said make 23, 1921. None of mesne reference the restrictive covenant in the deed. Hall, silent- M. record before us is to whether Walter said 3 and owner whole of lots Myers Fay containing owned deed to the restrictive city
was or tract of interested other situate, block in said 3 and or in were the immediate Fay Myers. vicinity lots, said he said at the time lots to that, was shown evidence defendant at the time of the prior thereto, most, all, of the instant suit if institution city block, exception with the houses located within of those Brooklyn Avenue, facing fronting houses on were owned and occupied by negroes. fronting Brooklyn All of the on houses Avеnue occupied persons. words, were white ap- owned pears approximately city the west one-half of the ques- block in by negroes approximately tion inhabited while was the east one-half block, Brooklyn Avenue, city fronting of said inhabited persons. It is shown white also the record that a large negro Avenue, extends blocks north and south of settlement several Howard Avenue, Brooklyn blocks several west and that the houses mostly occupied by negroes, are except within said area those houses Brooklyn fronting facing Avenue, east on which houses are oc- persons. cupied by words, In other beyond white record indicates dispute that plaintiffs’ is almost immediately serious con- tiguous settlement, large negro the area of to a which extends over *6 1245 v. Pleasant. plaintiffs’ south of lying west, north and city blocks several properties negro does not embrace the but settlement property, which abutting Brooklyn immediately fronting Avenue. apart- all of the twelve to show that Plaintiffs’ evidence tended upon east feet apartment building located ments 99% occupied by 1921, in September, lots 3 and 4 were white tenants lots; acquired that dеfendant title the west feet of said when 42% owner) (tenants negro occupied first negroes defendant the frame 3 4 September, located on the west said lots house immediately negro occupancy 1921, and after said com- that almost ’ menced, tenants plaintiffs vacated, leav- seven out twelve of white apartments garages ing upon plaintiffs’ seven premises three January, also vacant until 1923. Plaintiffs’ evidence to show tended plaintiffs’ space intervening the rear of apartment between building approxi- and the frame house on defendant’s mately ten feet. interposed
Defendant a demurrer to the at evidence the close trial, court, which demurrer was the trial excep- overruled ruling tions were saved to trial court’s thereon. Defendant as- signs error in the refusal her demurrer to the and in evidence entering of a decree favor of with the accordance prayer petition. At appropriate
I. it is outset us to for state our reasons for assuming jurisdiction appeal. party of this Neither to this action questioned jurisdiction presented has our question their briefs, but question jurisdiction may always be raised sua spontе by court, this proceed no court should Appellate judgment in a jurisdiction. unless it [City case has Jurisdiction. Clark, 294; Tarkio Mo. Springfield v. 186 l. c. South Ry. western Co. v. Schweitzer, 127, Mo. l. c. This court 128.] guard jurisdiction must its litigant own per cannot be jurisdiction merely by consent, stipulation mitted confer or ac [Railway quiescence. Schweitzer, Company supra; Vandeventer Bank, l. c. clear from the record before us 622.] jurisdiction appeal that we have no of this under Section Article prescribes of our Constitution, State appellate or limits our jurisdiction, this “involving unless ease is one title to real estate.” case does not involve the construction of either the Federal or affirmatively State nor Constitutions, appear does it from the record dispute, costs, amount in exclusive of exceeds the sum $7,500, jurisdiction so upon that we cannot assume either of those grounds. jurisdiction "We must therefore determine whether is be assumed and only retained this court possible ground, namely, that the involves case real title to estate. In order op Missouri, Yol. for the pleadings look to must question, we determine and decided case, on the trial presented raised issues scoрe and look to the below, must also and we chancellor the learned is taken. appeal which the judgment from of the decree or effect is conferred jurisdiction appellate exclusive Inasmuch as *7 involving title to real “in eases Constitution our State
this court 12; 5, amendment Sec. 6, art sec. (Constitution 1875, estate” been re often has this court Constitution), 6 to 1884 Article involving to real es title clause, “in cases quired to construe the ’’ appellate defining in our exclusive Constitution, in tate, as used court, by the several by this written jurisdiction. Much has been amount to question. It would precise that appeals, courts of many cases attempt review herein the to supererogation for us to cases, how ruling in each of such Our bearing upon question. such precise tried and determined upon the issues ever, has been bottomed given judgment scope and to the in case and the effect be each ruling in uniform of this court has been the rendered therein. jurisdiction appealed an give in this court that, such cases order to Constitution, meaning clause of the case within the of the aforesaid incidentally collaterally or it is not that title to real estate be sufficient compelled appellate may tribunals be involved, or that the trial and inquire reach a into and consider the title order to decision of presented judgment, questions but, or for in order con issues jurisdiction appear judgment it that court, fer this must directly rendered, rendered, affects, operates or to be case or Blankenship, 144 upon, the title to real Price v. Mo. l. c. estate. said, reviewing prior we decisions of this court: “It is firmly give jurisdiction now settled that to this court under Section 12 6 Constitution, of Article because the title to real estate involved, appear must the title to real will, estate in some way, directly judgment be affected to be rendered in the case. question It is not sufficient that the incidentally, title col laterally necessarily inquired into settle the issues. judg directly ment to be rendered must affect the title itself to the real ruling estate.” Our v. Blankenship, Price supra, has been ex pressly approved and followed in subsequent this court eases. Brooks, 1068; v. 200 W. S. Handlan v. Stifel, [Schroer 219 S. W. 616; Beck, 993; Heath 225 W. S. Mathews v. Hughes, 232 S. W. 99; Turner, 940; 242 Sikes v. S. W. Clinton County Trust Company Metzger, 266 W. S. 321.] “involving
Is the instant case one title to real estate” within meaning interpretation given to said clause of our Constitution prior this court? Thе decisions of word “involve” is defined Dictionary in Webster’s New International as “to draw into an entanglement complication; embarrass, complicate;. as with v. Pleasant. Looking pleadings implicate.” perplexities; difficulties chan- to the trial joined thereby and submitted herein for the issue the re- cellor, petition out in haeo verba plaintiffs’ find that sets we M. Walter strictive covenant contained the deed “was intended Fay Myers, that the said covenant wife avers running the land and made to and did become a restriction spe- of defendant for the of the land itself.” The answer benefit cifically running became a restriction provision “denies said answer itself,” with the land for and the fur- the'benefit of the thermore avers that “defendant took to the said feet title west 42% owners, unburdened with kind restrictions of alleged (including plaintiffs herein) owners the east 99% might ownership, and 4 lots assert occu- pancy plain- or use of said feet of west and these tiffs are not entitled to prayed the relief their second amended petition reply herein filed.” The denies answer. the averments of the Thus, the issue ques- defendant’s whether title to the real estate in tion against negrо burdened with ownership, restrictions use and *8 occupancy of joined said real is estate, pleadings. The trial necessarily court was joined by called upon to decide the issue thus pleadings; in words, up necessarily court was bn called adjudication to make an concerning defendant’s title real estate. The decree entered herein finding sets out trial court’s upon the joined, issue which is “that defendant, sale Jeffry Pleasant, and the occupancy thereof her and her tenants was in violation in restriction contained Sep- the deed dated 28, 1915, tember from Walter M. Hall Fay and Annie C. Hall to Myers.” finding upon The court’s the issue submitted is tantamount finding to a that the covenant contained in ais re- striction running with the land controversy, by plain- enforceable tiffs, and hence that defendant’s title to the real estate contro- versy is burdened with said restrictive covenant for the benefit of real, plaintiffs’ estate. The permanently enjoins decree defendant selling, “from occupying, renting, leasing, or or using per- otherwise mitting the use of said west of lots 3 block Dal- coulin . . by negroes . to or persons of African descent for period ending September time 28, 1930.”
If, аs defendant answer, avers her she took title to her said real estate “unburdened any restrictions of kind that might assert ownership, occupancy her use said real estate,” then she is entitled to the free and untrammelled convey alienate or said real person persons estate to whomso- ever, regardless color, of race or and she also is entitled to the free and occupy, enjoy use and untrammelled said real estate without The decree entered let or hindrance whatsoever. herein restricts and oe Missouri, Vol. prohibits her free alienation of said real estate and her use and oc- cupancy of the completely same. While the decree does not divest title, “complicates defendant of entangles” it nevertheless her amounts, least, title and partial at to a divestiture title. If de- cree in this affirmed, certainly ease be defendant’s title to real is estate affected and at partially destroyed. being least Such the effect of the decree, it follows, think, directly we “operates,” the decree say, is to power influence, produces (Webster’s “exerts an effect” Diet.), upon title. defendant’s We are therefore constrained to hold “involving estate,” that the instant case is one title to real and hence jurisdiction appeal must this of this be assumed court. We have precise pre- reached this conclusion because of the issue raised and because, in pleadings herein, the determination of sented necessarily issue, apparent to us that trial such it seems court was adjudicate the nature and extent defendant’s title called reviewing court, in question. This the correctness the real estate finding case, in the instant and in en- trial and decree of the court’s judgment disposing* appeal, the instant tering our likewise own adjudicate necessarily and determine the nature and called claims to estate she own extent of defendant’s title real affecting rights alienation, her user with restrictions unburdened Having plaintiffs are at so far as concerned. occupancy, least appeal, pro- jurisdiction of the instant we our matter of settled the case. to the merits ceed this, wherein such inquiry cases primary
II. The initial and equity, is whether sought to enforced restrictive covenant upon the imposed restrictive covenant land owned for the benefit owned defendant For Benefit Grantor, tjle coven seeking to enforce are wiao plaintiffs, *9 equit affirmative, then the inquiry in If answered ant. such on the if, plaintiffs; to the granted be able relief should must negative, then the hand, inquiry in is answered Mo. Barker, v. [Coughlin equitable prayed. relief the denied endeavor, must the court answering inquiry, App. l. In this c. 63.] the to parties of the possible, at the intention if to arrive and, created; as said was covenant restrictive deed which the App. Co., 169 Mo. Investment v. Hancock Co. in Kenwood Land from the be determined must of the c. intention l. “the the in connection considered language itself of the covenant made; or, was the covenant at the time surrounding circumstances coh itself covenant the language the said, from it is sometimes containing instrument of the context the entire light in the sidered ” ju authoritative App. 497.] Hawley, it. [Kitchen rest's burden that the rule the decisions dicial furthermore announce v. Pleasant. party plaintiff seeking the to enforce the restrictive covenant prove or establish that imposed upon the covenant' was defendant’s land for the benefit of the land plaintiff. owned
Looking language to the of the covenant contained in deed, the September 28, dated 1915, from Fay Walter M. Hall Myers, we part find that it reads: “As a consideration, grantee the the for himself and his assigns grantees agree successors and not to sell or assign rent of said negro to a period for a at least years of fifteen from this date.” The for consideration the moving grantee, one from the grantor, Hence, Hall. MJyers, grantor, Hall, beneficiary was the of the expressed consideration deed, and, light language of the itself, of the covenant which covenantor, recites that it was made Myers, “as.a deed, for appear consideration” the covenant would grantee, Myers, have been made grant- for the benefit of the or, Hall, contrary proof pari aof intention ^absence ties to the deed.
The record before us is silent as to whether Walter M. Hall owned vicinity Addition, other land in Dalcoulin or in the the land in controversy, containing Myers at the time he made the deed to the re- record, may appears strictive covenant. So far as from vicinity have owned and retained other land for controversy have been intended and the restrictive covenant Ropes, 110 Mass. one Sharp land. In the benefit of such other large out the same lots. land, tract of laid Heath, the owner of no dwelling.house, lots, owner, Heath, erected a On two of which it twenty street feet of the part of which was within plaintiff’s lots to conveyed parts of two other He thereafter fronted. covenant, that for condition, or which contained deeds granted premises placed building should be years fifteen no dwelling no trade offensive twenty the street within feet of Subsequently, he on. carried neighborhood should be in the houses containing the by deeds lots to defendant parts of two other building on large proceeded erect Defendant same restrictions. enjoin the sought to plaintiff of the street four feet his lots within the bene- was entitled claiming that she building, of such erection defendant. in the deed contained restrictive fit equitable for action her maintain plaintiff could was held at bar in the case “But said: matter, court ruling the relief. restriction that the infer can court nothing from there is intended the defendant Heath in the deed purpose No such plaintiff. by the owned now estate the benefit the situation from *10 plan, from gathered can be condi- purports grantor. land of other reference with mode out points the deed grantor, by imposed tion Mo.—79. -[October oe Missouri, Yol. he, which may heirs or devisees deeds, enforce it. Neither of the under these (plaintiff defendant) respectively claim, purports give grantee against any other grantee. aught For appears, the condition in- have been grantor tended for family, they the. benefit long or his as as dwelling own the proof house. The burden continued.to she plaintiff, giving insists to that condition wider the. if application, and this burden we do not find that has she sustained.” (Italics ours.) In Doerr ,, Cobbs, App. 342, grantor Mo. a common in a subdivision, conveyed, by separate deeds, different-lots at different times to grantees, different all lots, of such however, being subject certain, -restrictive covenants respective deeds. There nothing ivas to show that grantor the common did own not lots in the subdivision at the conveyances. times of such Defendant, remote lots, began of one of the an excavation on his lot for' purpose erecting building in violation of the restrictive covenants cоntained in the grantor deed from the common under which Plaintiffs, he claimed title. grantees remote of another lot under conveyances mesne from the common grantor, sought enjoin de constructing building on his lot a in violation of the fendant restrictive covenants contained in grantor the deeds the common plaintiffs reversing and defendant. in favor plain decree tiffs, the Appeals, speaking through St. Louis Court Goode, J., said: infirmity “The in the case for is that nothing there is connect with them covenant in the deeds under which defendant title, claims as so to enable them to maintain this suit for the enforce ment of the covenant. . questions The essential in cases like ... present grantor are whether the common meant the restrictive only benefit, to his own per to the benefit all inure already conveyed sons to whom he had convey or thereafter should vicinity; and, if the latter his purpose, whether way purchasers had in a been manifested would it. be treated bought having primary inquiry as with notice it. as to the imposing restriction; but, of the common intention suggested, supra, a to make the bare intention covenant inure to the claiming prior subsequent him either persons аll under benefit of purchasers cherished, but not made known so to affect deeds, purchasers impair the to hold notice, their tracts would [Coughlin Barker, 46 App. l. the restriction. c. exempt from proof furnished and sufficient of the inten Competent 63.] must.be bought with actual or constructive that the defendant notice tion and Haydoek appears, (common Flora aught of it.....For other lots Reber’s subdivision when she may have owned grantor) would an therefore have interest defendant, and her *11 Tootjejaker v. Pleasant. own in restricting the use of defendant’s lots. . Therefore, . . we nothing have before prove us to the covenant in defendant’s deed was meant for the plaintiffs. benefit of true, the same covenant was inserted in some forming deeds links in plaintiffs’ both and defend ant ’s chains title; precedents but the hold this circumstance alone does not suffice to show the covenant was intended for the benefit of prior grantees and enable them to restrain [Coughlin its violation.
Barker, 46
App. 54; Sharp v. Ropes,
381;
Mulligan
Mass.
”
Jordan,
363;
50 N. Eq.
J.
Beeler,
Summers v.
In 18 Corpus Juris, 396, it is said: “Where imposed restrictions part are not a general as of a improvement, scheme of for but are the benefit of land retained the grantor, grantees, in ease there one, are more than cannot such against enforce restrictions each other, showing unless there is a that the restrictions are for intended ’’ their benefit as grantors. well as that of the
Mr. Devlin, in recognized his Property treatise on Law of Real (3 Ed.) 1858, says: Deeds 2, page volume “In the absence evi- imposed dence that land, the restriction was the benefit of other it for personal is construed merely grantor.” covenant with the But whether the restrictive covenant in the instant case be con- merely personal grantor, strued as Hall, covenant made covenantee, having or whether the covenant be construed as been grantor, made for of other land retained the benefit neither plaintiffs position to claim of those events are the enforcement of damages for equity its violation in an the covenant or to recover may covenantee, Wal- at While it be action law. heirs, assigns, may Hall, devisees, maintain an action M. ter his subsequent covenant, or a at law for breach of made, M. Hall at the time the covenant AValter land retained may made, have been land the covenant of which for the benefit nevertheless, plain- equity, it is clear to us the covenant enforce action; rights for the obvious of such themselves avail tiffs cannot estate, between contract or of either of privity, is no there reason M. Hall. covenantee, Walter rule, “By common-law 1300, it is said: Juris, Corpus In 15 brought only by covenantee, can a covenant an action does not run with when covenant representative personal his prior breach occurs run, provided the so it does land, or when if occurs his the breach after or devisees by his heirs death, or generally now assignable, are in action . . Choses . death. may sue thereon in his own assignee of a covenant an therefore ’’ name. “Where a 1257, it is said: Corpus Juris, in 15 Again, breach, its time of land at the land, the owner with the runs action, an may maintain grantee, or remote immediate an whether oe Missouri, Yol. subsequent its breach his own name grantor. . . . But a maintain an action for the breach of pass covenants will not if purely the restrictions were for the benefit of the grantor, or gen- where the covenants were eral plan improvement; hаs or, held,, they been where were not for the purchased by assignee.” benefit
Speaking complainant to’enforce the observance of *12 by equity injunction, restrictive covenant in writ of the text-writer in says, Cyc. 864: although necessary “But it is not that the complainant party be a the sought should direct covenant to be enforced, is necessary bought it that he should have with of and notice it, in reliance the and that been covenant should have entered into complainant owns, merely the the land the for of for benefit personal original advantage the the covenantee.” plaintiffs assigns Inasmuch are not shown to be as herein the Hall, original covenantee, grantees or land Walter M. retained may covenantee, land by the for the of which the covenant have benefit plaintiffs made, privity it is no between follows there been covenantee, plaintiffs cannot maintain this action Hall, hence Hall, original grantor privies Walter the covenantee as Ml containing covenant. deed the restrictive the III. is no contend, that, Plaintiffs inasmuch as there however, Hall, covenantee, evidence in retained other the record that the vicinity Myers, conveyed land in the covenant the of the land he having made for as not been be construed
must therefore by any land Hall, or of retained personal For Benefit the benefit of Grantees. having made for the ^im, as been must be construed tmt consequently Myers, and as conveyed by Hall to of the land benefit grantees, Myers his remote the benefit of having been made for said, the burden rested However, have including plaintiffs. as we the itself by language of the covenant the upon show, either plaintiffs circumstances, the restrictive cove- facts and or from extraneous by Myers the was intended Hall to deed from nant conveyed the benefit of be made for parties to that deed to by' any land Hall, retained or benefit of personal not for the language of conveyance. him at time parties contrary of the proof intention itself, in the absence entered into either the covenant was indicate deed, would for covenantee, Hall, or the benefit benefit personal for the Barker, Coughlin As said by him. retained land of other conveyed general- land in the a restriction 61: “Such App. c. parties intended have been ly construed deed, since most land retained benefit purpose.” Plаintiffs offered have no could’obviously cases v. Pleasant. proof no that Hall did not retain other vicinity land of the land conveyed Myers, nor did proof offer of extraneous facts or surrounding circumstances from which reasonably we draw the inference and arrive at the conclusion that the restrictive covenant was parties intended to the deed to made for the benefit of the conveyed. land
Defendant insists that, though even land Myers, and in turn by Myers Bessie Kinley, may L. have been intended to the Hall deed to be burdened with the restrictive Mj[yers, nevertheless and his Conveyance of grantee, L."Kinley, Bessie each in turn became the Entire Tract: owner of the whole conveyed, and, tract Restriction Grantee. tract, Myers the owner of the whole either or his grantee, Kinley, was do free to with it as he or she pleased, except Hall, covenantee, Walter M. privies, Myers Kinley convey and hence either was free to whole, any part, use, said land free from as to pro- restrictions its original covenantee, Hall, in privity him, vided one did not insist the observance covenant. restrictive There- *13 fore, plaintiffs, grantees who are the cоntends' remote defendant portion of a with the restrictive have of burdened against defendant, to who the no enforce the covenant remote grantee portion land. another same 2by Tif- principle for contends is stated which defendant thus Ed.) restricting “An
fany Property (2 page agreement 1446: on Beal prima-facie not to construed particular tract of land is be the use of a favor of one tract in part to restrict the use of the as intended agreement by the part instance, For ah another thereof. particular he not make a use
land with his will pur- subsequent ordinarily be a conveyed cannot asserted ’’ part. another against owner of a land as the part chaser weight re- supported to be seems The aforesaid principle N. one 192 Y. Campbell, Korn judicial opinion. spectable The deed conveyed tract land. to one Lalor James Lenox provided which a covenant conveyance was made contained which be premises to the said Lalor, “will or suffer grantee, use that the only.” Lalor residences private first-class for the erection used Coleman, land to one the traсt of in interest conveyed an undivided tract to one conveyed the whole Lalor and Coleman and thereafter against and restrictions conditions, covenants “subject Coburn, Lenox of James in deed buildings contained nuisances ’’ tract the whole divided thereupon Coburn premises. above-described mort- separate placed he lots of which lots, upon each eleven into re- reference mortgages gage, none which private erected Coburn Lenox. from strictive covenant oe Missouri, You. dwelling houses lots, eleven conveyed were to various persons by deeds in which there was no mention of the covenant. The eleven mortgages were thereafter foreclosed, and separate lots were conveyed to various and purchasers different at sale foreclosure by referee’s deeds which contained part no of the restrictive covenant and made no reference thereto. passed One of the mesne con- veyances plaintiff adjoining passed by lot convey- mesne to defendant, ances began who to make alterations in building upon his lot so as to render it suitable for purposes. business Plain- tiff, predicating his equitable relief the restrictive covenant contained in the deed from Lalor, brought Lenox to an action to restrain defendant making from the alterations building. In denying plaintiff equitable relief prayed, New York Court Appeals said: “Lenox plot whole to Lalor. That conveyance, true, it is subject made to the re- strictive covenant, but there is no evidence that the land was to be divided, and obligation Lalor was under no to divide it. The cove- purely nant was Lenox, remaining the benefit of lands, or his any. if he aspect had In no of the case could the covenant have benefited of the land it. burdened That land all belonged to Lalor. It was piece, all one and it was all covered by the same prevailed restrictions. The same conditions when Lalor conveyed an undivided one-third interest the land to Coleman. The latter took with notice of the covenant the deed Lenox from and, to Lalor, assuming merely dry that it was not personal cove- nant, against Lenox could have enforced it Coleman as well as Lalor. When Lalor and Coburn, subject Coleman Lalor, the deed Lenox to in single the land was still piece, Coburn, it, the absolute of was owner free to do with it pleased except against Lenox, original covenantee, he. or those history juncture who in his title stood shoes. At this sep- property. Eleven there was for the first time a division of the *14 mortgaged by company, but arate Coburn the insurance lots were covenant, mortgages part of the restrictive none of the embodied separate lots were thereto. When the or contained reference the grantees was no mention of thereafter to different there foreclosed, the mortgages subsequently covenant, were and when the by Upon these facts qualified no restrictions. referee’s deeds were for the of the learned counsel assent to the contention we cannot this grantor of the common plaintiff that Lenox the by Lenox because the was exacted action; that the covenant was taken not for his own that it lots, into and was to divided be separate might later become the who benefit, protect those but to logic the transaction By inevitable the parts of the tract. owners of Having parties. the title grantor of the the cоmmon Coburn became Pleasant. to the whole of the land, he had the pleased, to do with it as he except as Lenox and assigns. his Cobum decided to divide' the and to sell it without restrictions, and he carried his resolution into effect. plaintiff Neither the nor the defendant has- any different title than they that which through derived the un- restricted deeds from original Coburn. The may which good in favor of assigns Lenox or against any his of Co- burn in this tract, is not grantees.” enforceable as between such In Jewell Lee, (Mass.) Allen original the owner of land' lying on both sides of a street, conveyed lying on the south side, which bordered ocean, subject the to the condition or re- striction that the same should only bathing boating be used for beach, the only and that bathing-houses low should be built thereon. Subsequently, plaintiff defendant, respectively, ac- quired by conveyances title separate mesne portions of the re- stricted land acquired separate portions also title the on the north side of street, immediately opposite respective the their tracts on the south attempted side of the Defendant move street. dwelling house, which was located land on north side street, of the by onto him the tract of land owned on the side south street, of the and plaintiff, adjoining land, the owner tract of sought to moving dwelling house, restrain defendant from claim- ing that purposed of land would use defendant’s tract amount to a violation of the restriction contained the deed from their com- grantor. dismissing equitable relief, mon plaintiff’s bill for ground plaintiff court said: main claim “The on which the rests his equitable is, relief that the condition annexed owner grant land, to his the entire tract of which conveyances, plaintiff severally mesne hold defendant now parcels, perpetual on the use distinct constitutes restriction defendant, of a part now owned the nature servitude plaintiff, easement, on the observance of which owner It is to insist. doubtless original parcel, has part of the in a class of cases effect of condition that such be the true grant to a was annexed that the condition apparent it is where advantage- rendering more beneficial improving or purpose of it become di- granted, when should the estate occupation ous the individuals, or owned different parcels and be separate vided into of an estate on the use object a restriction when the manifest vicinity adjoining to or another tract was to benefit absence But, imposed. the restriction which land on object, a condition purpose show such circumstance any fact or law operation, either at no effect can have grant to a annexed the rules com- attaches beyond equity, in only enure in such cases would condition The benefit law. mon *15 oe Missouri, Vol. grantor to the and his heirs or devisees, and the burden of it would rest on the estate to which it was annexed, and on it, those who held any part or it, subject of Indeed, condition. no restriction on the use of land and no condition annexed to possession its and en- joyment can be for grantee the benefit of the holding or those his granted estate premises, unless it be as a consideration of some restriction land, on other operate advantage an or con- venience in the use and occupation of granted premises. Inas- a grantee much as can restrict the use of land of which he is the according owner his will own and pleasure, it is clear that he can derive no benefit from a restrictiоn or condition as imposed enjoyment use by prior any grantor. its There is nothing in the case any degree before us which in tends to show that there was intent on part grantor grantee original by which the condition grant was annexed to that of the land now suit, give any owned to this other or different effect to the condition than that which would result from it at common appear law. grantor does that the had in contempla- separate tion the division into parcels lots or which would owners, be held different or that the condition was inserted the. grant purpose creating for the a restriction on the use subsequent grantees as between of different lots parcels thereof. . . . So far as see, we are able to nothing there is to indicate that original grantor premises, annexing of the condition, had regulate possession intent to enjoyment or control the premises subsequent for the benefit grantees owners or estate, any part of it, imposed by but that it was him solely private personal benefit, own as the owner other lots in the vicinity, present plaintiff which the no interest whatever.” has King Dickeson, (English Reports) Div. Law 596, Ch. platted grantor by number lots were common deeds grantee into wherein the of each entered lot covenant with the common purchasers and with the of the other lots not to beyond build specified his lot building King, line. Plaintiff who was purchaser lots, being one of the Lot mortgaged part mortgagees said lot. had notice the re- mortgage strictive but stipulation limiting no mortgaged portion mortgage use of the of the lot. The was after- part wards foreclosed and title to that of Lot 258 covered mortgage subsequently defendants, purposed vested in who to build beyond building line fixed the restrictive covenant. It was plaintiff, held that the owner of said Lot was not entitled against defendants, the restrictive covenant to enforce owners of delivering J., opinion lot. Said the remainder of said North, “I case is free from doubt. The think the defendants the court: *16 1257 v. Pleasant. acquired part have 258, subject original of Lot to the restrictive . question my covenant. . . is, decision de- whether the fendants, who purchasers part they are upon of of Lot which proposing are beyond building line, can to build be restrained the doing from by purchaser by so of the the another lot—but —not owner agree- of the remainder the Lot 258. no sаme There was of as plaintiff mortgagees ment entered the his to the into between doubt, comprised though, in the no mortgage, user of the land subject obligations existing mortgagees the the then took right it, subject to the respect and, therefore, in of the of owners compel lots observance of the restrictive other building nothing prevent upon 258 the owner of Lot there was way the owners of the any pleased, provided it in that none of he objected doing suggested It has been that the other to his so. many lost, in their cases reason owners the other lots have object right they originally breach had to conduct, the they all lost that 258. If have by the owner of Lot of the covenant any it upon build entitled to right, that lot would be the owner of mortgagee part of a of Lot suggested way he pleased. mortgagor, the owner obligation with his into new 258 some entered mortgaged part. For that user of the part, as to the the other my opinion the owner whatever. I no colour suggestion can see mortgage to the mort- comprised it part of Lot not it, but did existing relation rights to all then subject gagee pbli- right any new mortgagee against as implication create any right new having created favour, and, his own gation in up as set now mortgagee, he cannot against obligation mortgagee. The through the title derives purchaser who against a ’’ be dismissed. must therefore, fails, and action, Wentworth, 474; Ky. Dana v. Hite, v. are Graham To like effect Ely, 447; and Lewis 99 Neb. 291; Wright Pfrimmer, 111 Mass. App. 252. N. Div. 100 Y. matter, light
As us, we view the in the record before neither Fay Myers grantee, nor his immediate L. can Kinley, Bessie any to have derived benefit from the restrictive covenant contained Myers Fay in the Hull. Kinley, deed from Walter M. Bessie L. in turn, acquired each to the whole tract of land title the Hall deed. of land, As the owner of the whole tract each in turn had the to place tract, any -part such restrictions she) thereof, (or desired, and, as he hand, each had eonvey tract, thereof, the whole free from except whatsoever, original restrictions covenantee, Hall, Walter M. standing privity or one stead with him.
But Kinley, claim subsequent that Bessie L. as the owner conveyed by whole tract of land the Hall deed, evidenced her Missouri, Yol. land, original tract feet the west intention restrict 42% feet of the east defendant, for the benefit
now owned
99%
claim
This
trаct,
by plaintiffs.
original
now owned
Kinley
in-
L.
fact
Bessie
is based
Continuation
Later Deed.
Donnell,
L.
defendant’s
serted in the deed to James
tract
conveying
title,
the west
predecessor
subject
all incumbrances
is made
that “this deed
land,
recital
Plaintiffs as-
real estate.”
affecting
described
said above
of record
af-
“incumbrance
record
is an
sert that the restrictive
*17
that the
controversy,
land
fecting”
feet of the
the west 42%
“subject
all
of
conveyance
land Donnell
incumbrances
of said
’’
grant-
affecting
real
evidences the intention of the
record
said
estate
or,
Kinley, to
burden of the restrictive cov-
Bessie L.
continue the
conveyed
for the benefit of the re-
enant
land
to Donnell
the
original
However, the record shows
mainder of the
tract of land.
Kinley
portion
original
L.
retained
tract
Bessie
no
conveyed by
conveyed
of land
Hall
time
the west
deed at the
she
deed
Bessie L.
feet thereof
Donnell. The date
from
42%
Kinley
Donnell,
L.
conveying the west
to James
feet
42%
original
land,
26, 1918,
tract of
March
that deed was recorded
April
Fay Myers
Joseph
1918. The
F.
deed
trust
Keirnan, trustee, conveying
feet,
the east
the remainder of the
99%
original tract,
September
dated
27, 1915,
and said
deed
trust
thereby
was
conveyed
foreclosed and the
was sold
powers
trustee under
1917, prior
deed
trust on
October 5,
conveyance
to the
Kinley
west
feet
L.
Bessie
to Donnell.
42%
Neither the
deed,
deed
trust nor
conveying
the trustee’s
the east
original
feet of
any
tract,
made
reference
the restrictive
99%
covenant
the Hall
deed.
effect of the foreclosure
pass
the deed of trust was to
the title of
Kinley
Bessie L.
to the
east
original
purchaser
feet
tract to the
at the foreclosure
99%
sale, subject only
to the
Kinley
L.
of Bessie
redeem
statutory
within the
period
year
of one
after the sale. Bes-
Kinley
sie L.
never redeemed said property.
us,
It seems clear to
therefore, that
L. Kinley
Bessie
no
original
retained
other land in the
tract
at the time she
the west
feet thereof to James L.
42%
Donnell,
predecessor
defendant’s
in title.
If
there had been
proof that
L. Kinley
Bessie
had
exact,
intended to
continue,
restrictive covenant
her deed to Donnell so as to burden the west
feet for the benefit of the east
original
tract-—
42%
99%
which there
plan
was not—then
failed,
parted
because she
her title to the
parted
east
feet before she
with her title to the
99%
west
feet. The record
plaintiffs’
herein shows that
title to
42%
east
feet is derived from an earlier deed than 99%
under which
defendant derived title to the west
feet. The earlier
under
1259
v.
State
Kunkel.
im]
which, plaintiffs hold
no
cove
title made
reference to the restrictive
nant.
App.
Doerr v.
the rule is thus
Cobbs,
l. c.
by Judge
stated
maintain a
plaintiff
“That such a
cannot'
Goode:
suit
conveying
to restrain the
violation of a covenant
a later deed
vicinity
land in
simply
of that first
because there is a
restrictive covenant in
violation
the later deed and its
will affect the
enjoyment
plaintiff’s
property,
has been declared
cases which
directly
point.
[Mulligan
Eq. 363;
are
Jordan, 50 N. J.
Rob
v.
Scull,
Eq. 397;
111; Hyman
erts v.
58 N. J.
67 Atl.
Gorman,
Leaver v.
Tash,
472;
Beeler,
Sharp Ropes,
Atl.
474;
Summers v.
Me.
It is assigns are not of Walter M. original covenant, they covenantee of nor do the restrictive hold title to retained Walter M. Hall at the time made; hence, plaintiffs in privity are not with the covenantee and privies cannot maintain this action Privies. ]\£ Plaintiffs, waiter Hall. hand, on the other have failed to sustain the burden of proving deed, that the containing the restrictive intended the covenant to the benefit of conveyed by that deed. Therefore, we cannot say that the of the restrictive covenant is running one with the benefit plaintiffs’ land. Plaintiffs have failed to show *18 they herein that are entitled to the of the restrictive covenant. benefit (respondents follows that here) are not entitled to the equitable relief prayed, and that the trial court erred in not sustain- ing defendant’s demurrer to the evidence and in entering a decree of plaintiffs. judgment favor nisi is reversed and therefore the cause is remanded with directions to injunction dissolve the plaintiffs’ petition. to dismiss Lindsay, G., concurs. PER opinion foregoing CURIAM:—The by Seddon, C., adopted opinion
as the All judges of the court. concur, except Graves, J., absent. Nancy Kunkel, Appellant.
The State Two, Division November Competency: Trespasser. 1. DYING DECLARATION: statement shot me Res Gestae: A dying Nancy in the Humphreys declaration of deceased that “Mrs. through just ago. her window little while She was inside the
window” was But admissible. his further statement that “she me invited period down to see her” referred to some former and was gestae relating homicide,- res and therefore was inadmissible as a dying seeking declaration. And since deceased said statement was