Hodson v. Walker

TRIMBLE, J. —

Appellant filed a bill in equity wherein he alleged that he is the owner of a certain lot and building thereon, and the furnishings therein located, in the city of St. Joseph, having purchased *635 the same from one Mary W. Lutz; that his ownership is subject to á contract in writing made by said Lutz with Tess Woods prior to the deeding of said property to appellant, in which contract said Lutz undertook to rent said property to Tess Woods and gave her an option to buy same, and agreed to convey same to her when the said Tess Woods had paid the purchase price of $26,800 in payments as follows: $10,000 in five years with sis per cent interest per annum payable monthly beginning May 21, 1911, and $16,800 in weekly installments of $65, each beginning April 22, 1911, and ending June 24, 1911, and $75 per week thereafter until said $16,800 is fully paid; that in said contract it is further provided that said Tess Woodsi shall keep the property in repair, pay all the taxes, and faithfully perform all stipulations therein contained, and make- all weekly payments therein required and a failure to- do so shall cause a forfeiture of the premises, give a right of re-entry to the owner, and the weekly payments made shall be retained as liquidated damages for failure to comply winth the contract, and upon such failure, possession of shid premises shall be delivered to the owner. The petition alleges that the contract referred to was in reality a lease for a bawdy house, so drawn in order to avoid the consequences of making such a lease; that the premises are now used for a bawdy house, in which many lewd women live and engage in whoredom, the sale of intoxicating liquor, loud, indecent and offensive broils and the practice of abhorrent and unmentionable vices; that the maintenance of such brothel is a public nuisance and a disgrace and dishonor to the city; that by reason of all these practices in the use of plaintiff’s property, plaintiff will suffer irreparable damage, his property rendered worthless and undesirable, and that such use will continue unless defendants are restrained ; and that plaintiff has no legal remedy. Wherefore he prays that said nuisance be abated; that de *636 fendants be enjoined from using said premises as a bawdy bonse and from barboring prostitutes therein.

A demurrer to tbe petition was filed wbicb tbe trial court sustained, and plaintiff, refusing to plead further, stood upon tbe petition. Wherebpon judgment was rendered against him and be now appeals.

Tbe question presented for our consideration is not tbe desirability or tbe feasibility of efforts to lessen or prohibit tbe social evil, but to determine tbe sufficiency of tbe petition as tbe foundation of a suit in equity.

There is no allegation in tbe petition that tbe defendants are insolvent or unable to make tbe payments required of them by tbe terms of tbe contract. Indeed, tbe inference is that they are paying these installments promptly, or else tbe appellant would exercise tbe right of re-entry provided in tbe contract. From tbe allegations of tbe petition it would seem that tbe property has increased in value since tbe contract was executed rather than decreased. There is no allegation in tbe petition that plaintiff is or was ignorant of tbe purpose of tbe contract; or that tbe property is being used for a purpose different from that contemplated by tbe parties when it was made. On tbe contrary, the allegations show that it is being used in strict accord with such intention. Tbe petition shows that tbe sum of nearly $10,000 has been paid on tbe purchase price, and that if the defendants do not comply with the terms of tbe contract, all rights thereunder are lost and tbe money paid can be retained as liquidated damages. Appellant owns no other property in tbe vicinity to suffer deterioration or loss. There is nothing to show that he is or has been in any way prevented from taking-possession of said property for breach of any conditions in said contract; nor are any facts pleaded which show any danger of loss or injury to him. On tbe contrary, tbe facts pleaded show -that be is not in any danger of irreparable injury from depreciation in val- *637 me. In other words, his desire and purpose to restrain the alleged vicious and unholy practices complained of is not connected with the preservation or conservation of any property rights whatever. He is seeking to prevent the commission of such practices, and compel an observance of both morals and law by means of a court of equity. But relief of this nature cannot he granted by equity courts. Equity can never be used as a means of enforcing the criminal laws, or of restraining the commission of crime where it is not connected with property rights. [State ex rel. v. Schweickardt, 109 Mo. 496 , l. c. 515.] In such cases public officers are the only parties who can maintain a suit in equity to restrain nuisances. State ex rel. v. Vandalia, 119 Mo. App. 406 , l. c. 418 and cases cited; unless, of course, the complainant can allege and show some peculiar special injury beyond that done to the community at large. [Swain v. Railroad, 97 N. E. 247 ; Schenrich v. Light Co., 109 Mo. App. 406 ; Spence v. Finchler, 151 S. W. 1094 ; Givens v. McElroy, 79 Mo. App. 671 .]

While the petition contains the allegation that plaintiff has no adequate remedy at law, yet there are no traversable facts pleaded from which such absence of a plain and adequate remedy at law can be seen. [State ex rel. v. Woods, 155 Mo. 425 , l. c. 449; Verdin v. St. Louis, 131 Mo. 26 , l. c. 105-6.]

If the allegations of the petition concerning the contract under which defendants are holding possession are true, then such contract is illegal. [Sprague v. Rooney, 104 Mo. 349 .] And a suit for possession based on that ground could be maintained. Upon the establishment of that fact, no cloud would remain on plaintiff’s property since the law would declare that such contract had no existence from the beginning. [Sprague v. Rooney, 104 Mo. l. c. 360.] Besides, if such contract is a cloud on the title, the procedure in *638 this case will in no way remove it but will rather fasten it still tighter with a moral stigma added thereto.

The petition clearly disclosed no equitable right in plaintiff to proceed on the facts, alleged. "We do not say that no circumstances nor allegation of any hind would entitle plaintiff to equitable relief but only that, under the facts as alleged by Mm in this particular petition, he is not entitled to the aid of equity. The judgment of the circuit court is affirmed.

All concur.