McElroy v. Morley

The opinion of the court was delivered by IÍORTON, C. J.: This action was brought by Elizabeth McElroy and others, to restrain Charles H. Morley and others, from erecting a building upon certain real estate in the city of Fort Scott. Judgment was rendered in favor of the defendants, and the plaintiffs bring the case here. The facts are substantially as follows: Prior to August 21, 1867, Aaron Loewen, the grantor of both parties herein, was the owner in fee simple of lot 2, block 69, in the city of Fort Scott, Bourbon county. On that day he sold to Frank J. and "William R. Robinson a portion of said lot, and gave to them a bond for a deed, which bond for a deed and the deed given in accordance with the bond, dated September 2, 1868, contained the following descriptions and restrictions: “Two parts of lot No. 2, in block No. 69, in the city of Fort Scott, Bourbon county, state of Kansas, described as follows : The south half of said lot No. 2, having a front on Main street of 25 feet, more or less; and, second, all that portion of said lot No. 2, forming a right-angled triangle, lying north of the east-and-west line above described, and east of a north and south line, crossing said east-and-west line twenty feet west from Main street; provided, however, that the said Frank J. Robinson and Wm. R. Robinson, their heirs and assigns, shall not, and this sale is made upon the express condition that they will not, at any time hereafter, build or place, or allow any one to build or place, any building on this said portion of said lot last described, (to wit, the triangle.) “ It is further agreed by the said parties, their heirs and assigns, not to erect any on the main building on said lot No. 2, block 69, of any other [material] than of brick or stone.” Charles H. Morley is the present owner of that part of lot two described in the bond and deed above referred to. Afterward, on September 28, 1867, Aaron Loewen sold and gave to Jane A. Hull a bond for a deed, and on October 7, 1868, conveyed by warranty deed to her, in compliance with the [83] provisions of the bond, the balance or remainder of said lot two, block sixty-nine. The bond and deed to Jane A. Hull contained the following description: “The fraction of north half of lot No. two, in block No. sixty-nine, commencing twenty feet west of Main street, and extending one hundred feet west from that point running east and west, and twenty-five feet north and south, more or less.” The plaintiffs are the heirs-at-law and legal representatives of Moses McElroy, deceased, the grantee of Jane A. Hull. Plaintiffs claim that the restriction under the deed from Aaron Loewen to Frank J. and William R. Robinson, intended to and did create a servitude upon the triangular piece or portion of the lot, and also an easement and benefit to that portion of lot two now owned by the plaintiffs; therefore that they are entitled to the relief demanded; that the district court erred in refusing to grant them a perpetual injunction, and in rendering a judgment against them for costs. Aaron Loewen is not a party to this action, nor has he made any claim for the violation of the restrictions and covenants in the deed of September 2,1868. The bond and deed executed to Jane A. Hull do not refer to or contain the restrictions or covenants recited in the deed to Frank J. and William R. Robinson. In our view of the case, it is immaterial whether the restrictions in the deed to the Robinsons were personal covenants, or conditions subsequent. Neither Aaron Loewen, the original grantor, nor his heirs nor legal representatives, are asking for any advantage of the breach of the restrictions or conditions in the deed to the Robinsons, and no one in this action represents them. The plaintiffs did not pay for or receive under the deed to Jane A. Hull of October 7,1868, any interest, estate or title to the triangle referred to in the deed to the Robinsons, and although they may be inconvenienced by the erection of a building upon that piece of the lot, they are in no position to demand a reverter or forfeiture of any estate in the triangle, or to prevent the owners thereof from erecting a building thereon. Where a grantor conveys an estate upon condition subsequent, aud the condition [84] is broken, the owner of adjacent property, deriving his title from the same grantor under a subsequent deed, cannot claim a reverter or forfeiture of the estate described in the former deed, when he was not a party to the prior deed, and the conveyance to himself does not refer to the condition subsequent contained in said deed; nor is such adjacent owner entitled to take any advantage of the. breach of any condition contained in such prior deed to which he is in no way a party. (Badger v. Boardman, 82 Mass. 559; Skinner v. Shepard, 130 id. 180; Hooper v. Cummings, 45 Me. 359; Piper v. Railway Co., 14 Kas. 568.) In O’Brien v. Wetherell, 14 Kas. 616, referred to, the grantor in the deed brought the action to claim a forfeiture of the estate, from the grantees to himself; therefore that case is not in point. The judgment of the district court will be affirmed. All the Justices concurring.