192 Mo. 379 | Mo. | 1905
This is an action of ejectment, instituted in the circuit court of the city of St. Louis, on the 18th of January, 1901, by the executors and devisees under the will of George P. Tower, deceased, to
The ouster is laid as of the 18th of January, 1901.
The case was tried by the court without a jury, and the trial resulted in a judgment for the defendant, from which the plaintiffs appealed.
THE ISSUES.
The petition is in the usual form in such cases.
The answer admits the corporate character of the defendant and that it is in possession of the premises, and then denies every other allegation in the petition not specifically admitted. It then specially pleads that the land sought to be recovered is the south 100 feet of a large tract of 610 feet in City Block No. 1366 and fronting on Grand avenue, which belonged in 1889 to George F. Tower; that on the 4th of December, 1889, Tower conveyed the 100 feet to Nolker in consideration of $9,000, retaining the remaining 510 feet, and imposed upon both tracts certain restrictions with reference to subdividing and improving the respective parts, which will be more particularly referred to hereinafter; that on the 7th of January, 1890, the defendant became the owner of the premises by mesne conveyances from Nolker; and on the 8th of July, 1890, it subdivided the -lot so purchased from Tower, together with other property owned by the defendant, adjoining the same, into what is known as ‘Compton Heights; ’ ’ and on the 8th of July, 1890, filed a plat of that subdivision in the recorder’s office of the city of St. Louis, which showed the rear end of the lot acquired from Tower to be incorporated in lots 3 and 4 of that subdivision, of all of which Tower had notice and knowledge; that immediately upon filing said plat, the defendant offered for sale the lots set out and de
The reply pleads that the deed from Tower to Nolker contained an express provision of re-entry, and was not simply a covenant; admits that the defendant subdivided the 100 feet acquired from Tower, but denies that Tower knew that the same was offered for sale; denies that the improvements on lot 4 of “Compton Heights Addition” were begun or completed in the year 1890, and further denies that the stable erected thereon cost $10,000; denies that Tower had knowledge
The case made is this:
Prior to December 10, 1889, George F. Tower owned a tract of land in City Block No. 1366, having a front of 610 feet on the east side of Grand avenue, and extending eastwardly 295 feet.
The defendant corporation owned the land immediately south thereof on the east side of Grand avenue, together with a large amount of other property extending eastwardly. It was engaged in the establishment of a subdivision to be called “Compton Heights,” which was intended as a choice residence district. One Haarstiek was the president of the company, and Julius Pitzman was the manager. Nolker was a director in the company. The defendant desired to sell to Nolker the lot lying immediately south of the Tower property on the east side of Grand avenue and on the north side of Longfellow boulevard. The lot then owned by the defendant had only a front of 118 feet on Grand avenue. Nolker wanted a lot 200 feet square. For the purpose of giving him a lot of that size the defendant procured through Pitzman a conveyance from Tower of the property here in controversy, being 100 feet immediately north of the 118 feet so owned by the defendant. It. was designed that Nolker would erect a handsome residence on the land, but, as his plans were not then fully completed, the defendant agreed with him that if he
Tower had refused to make such a conveyance until he was informed of the name of the buyer and the pur
Thereafter, on the 18th of January, 1901, the plaintiffs, as the executors under the will of George P. Tower, and as devisees under the will, instituted this action in ejectment to recover the said 100 feet so sold originally to Nolker, except the portion which was thrown into lot 4, so sold by the defendant to Mrs. Tinker, and except the portion which was thrown into lot 3 of “Compton Heights.” The theory of the petition is that by subdividing the 100 feet sold by Tower to Nol
I.
This is the second appearance of a controversy arising out of the conveyance' by Tower to Nolker. The question was formerly presented to this court in the shape of a bill in equity by the present defendant against the present plaintiffs to enjoin them from subdividing the 510 feet into smaller lots than 100 feet front each. That case is reported in 158 Mo. 282. This court then fully considered the relative rights of the parties arising out of that deed, and held (1) that the obligation, not to subdivide into lots of less than 100 feet front each, was a mutual obligation, notwithstanding that upon the face of the deed the obligation not to so subdivide seemed to be obligatory on one party only, because the manifest intention of the parties was to make that obligation a correlative and mutual obligation; (2) that conceding that Tower disregarded the obligation so imposed on him not to subdivide the 510 feet, nevertheless, the defendant in this case (the plaintiff in that
The result reached in that case was unquestionably correct. The defendant company was guilty of the first wrong in throwing 70 feet of the rear of the premises acquired from Tower into lots 3 and 4 of “Compton Heights. ’ ’ That act was a violation of the terms of the deed from Tower to Nolker. Of course, therefore, the company could not thereafter object, successfully, to Tower subdividing the 510 feet. Likewise there was no element of estoppel as against Tower which would take away his right to insist upon such prior breach of the terms of the deed by the company.
The question of whether the provisions of the deed constituted a condition subsequent, for the breach of which Tower would be entitled to re-enter and re-take possession of the premises, or whether they constituted, simply, covenants, for the breach of which Tower was entitled to recover damages, was not involved or adjudicated in that case. Neither was the question, whether, under the facts in judgment in that case, Tower was entitled to re-enter and recover possession, nor whether, if so entitled, that right was barred by limitation, nor, yet, whether Tower was precluded from so doing by having elected to pursue the other remedy of also subdividing his 510 feet, involved or decided in that case. Those are the three principal and decisive ques
Defendant company acquired title to the property in controversy in July, 1890, and immediately thereafter platted the whole tract, including the 100 feet acquired by mesne conveyances from Tower. In so platting and subdividing, the company threw the 70 feet of the rear of the property acquired from Tower into lots 3 and 4 of “ Compton Heights. ’ ’ That constituted a breach of the terms of the deed. The company then sold lot 4 of “Compton Heights,” including a part of the 70 feet thus segregated from the property acquired from Tower, to Mrs. Tinker, and during the year 1890 she erected a residence thereon, one corner of which rested upon the portion of said 70 feet embraced in lot 4. Thereafter, in July, 1891, Mrs. Tinker erected a stable, which was located largely upon such portion of said 70 feet so constituting a part of lot 4. Tower took no steps whatever to prevent the company from so doing or to prevent Mrs. Tinker from so doing until May 11, 1893, when he caused the 510 feet to be subdivided as hereinbefore shown, recorded the plat, and enclosed a copy thereof to the defendant company, with a notice that he had so done and that he intended to sell the lots so subdivided into lots less than 100 feet front each. If, instead of so doing, Tow;er had then elected to treat the act of the defendant company in so subdividing the 100 feet he had conveyed to- Nolker, and the act of Mrs. Tinker in erecting a stable on a portion thereof, as a breach of the terms of the deed and had brought suit in ejectment to recover the possession of the property sold, or so much thereof as remained after the 70 feet had been segregated and'added to lots 3 and 4 of “Compton Heights,” a very different question would have been presented from that involved in this case. In such a contingency, the question whether the provisions of the deed prohibiting subdividing, etc., constituted a condition subsequent or a mere covenant, would have been presented for adjudication, so also the
In the case last cited it was said: “It is well-settled law that where a party has the right to pursue one of two inconsistent remedies, and he makes his'election, and institutes his suit, in case the action thus begun is prosecuted to final judgment, or the plaintiff has received anything of value under a claim thus asserted, he cannot thereafter pursue another and inconsistent remedy. ’ ’
Bigelow on Estoppel (5 Ed.), 673, states the rule thus: “A party cannot either in the course of litigation
The Eney. of Pleading and Practice, volume 7, page 361, states the rule in this way: “Whenever the law supplies to a party two or more methods of redress in a given case, based upon inconsistent theories, . . '. the party is put to his election, and his choice of either is a bar to his resort to the other.”
Tower and the plaintiffs were fully aware of all the acts done by the defendant company and by Mrs. Tinker at the time they were done. They were, therefore, put to their election — whether they would sue in ejectment or treat the provisions and restrictions of the deed as abrogated and the servitude imposed on the remaining land by the deed as released, and they elected to take the latter course. They cannot now be heard to also maintain an action in ejectment to recover the premises. This conclusion makes it unnecessary to consider whether the terms of the deed constituted mere covenants or conditions subsequent, for it assumes the rights of the plaintiffs to be as strong as the plaintiffs contend they are.
II.
The defendant company violated the terms of the deed in July, 1890. The plaintiffs’ cause of action accrued a.t that time. This action was not instituted until January 18, 1901. The action was therefore barred by the provisions of section 4262, Revised Statutes 1899. The excuse offered by plaintiffs for not sooner instituí
The plaintiffs cannot be heard to say, as they ask to be in this case, that they have had a right to waive the first breach of the terms of the deed by the company in subdividing the lot sold by Tower to Nolker, and to insist upon the second breach of the terms of that deed by Mrs. Tinker in building a stable on a part of the lot, and thus to avoid the effect of the Statute of Limitation upon their right of action, for throughout the whole of the injunction suit these plaintiffs relied up on the first breach by the defendant of the terms of the deed in so subdividing the 100-foot lot, and that case was decided in their favor upon that ground. Having so treated that act of the defendant, the plaintiffs cannot now be heard to say they waive it or that they have waived it; for their conduct in the injunction suit was in no sense of the word a waiver. On the contrary, the plaintiffs acted upon the first breach, subdivided the 510 feet, offered it for sale, and have derived all the benefits belonging to the land which attached in the absence of the restrictions and servitude placed upon it by the deed from Tower to Nolker. This action is, therefore, barred by the Statute of Limitations.