Cowherd Development Co. v. Littick
| Citation | 238 S.W.2d 346,361 Mo. 1001 |
| Decision Date | 12 March 1951 |
| Docket Number | No. 42059,No. 2,42059,2 |
| Parties | COWHERD DEVELOPMENT CO. et al. v. LITTICK et al |
| Court | United States State Supreme Court of Missouri |
John C. Meredith, Meredith & Harwood, George T. Aughinbaugh, Moore & Aughinbaugh, Alvin C. Trippe, Hale Houts, and Hogsett, Trippe, Depping, Houts & James, all of Kansas City, for appellants.
George K. Brasher, Guy M. Boyer, Kansas City, for respondents.
WESTHUES, Commissioner.
This is an action brought under the Declaratory Judgment Act, Chapter 527, R.S.Mo.1949. The question presented is whether restrictions in Hinkle Place, Kansas City, Missouri, were extended for a period of 25 years from September 1, 1946, as to all of the lots or whether such restrictions were extended only as to part of the lots in Hinkle Place. The trial court decreed that the restrictions had been extended as to all of the lots. Plaintiffs who by their suit sought to have certain lots exempted have appealed.
Hinkle Place was platted as an addition in Kansas City, Missouri, effective September 1, 1921. The restrictions imposed were to continue for 25 years. The addition is bounded on the north by 62nd Street, on the south by 63rd Street, on the east by Oak Street, and on the west by Main Street. Morningside Drive is a street running north and south through the center of the addition. The plot to the east is divided by McGee Street running north and south. The plot to the west of Morningside Drive is divided by 62nd Street Terrace which runs east and west. The lots are numbered from 1 to 72 inclusive. The addition was restricted to one-family dwellings and certain other restrictions that are usual in such cases. The property owners in the addition have been vigilant in guarding the restrictions See Hall v. Koehler, 347 Mo. 658, 148 S.W.2d 489. The plat filed for record contained the following clause authorizing an extension of the restrictions for a period of 25 years: 'Said period of 25 years during which the aforesaid restrictions shall be enforced may be extended as to any or all of said restrictions for additional periods not exceeding 25 years each, by owners of the majority of the front feet of said Addition prior to the expiration of the first 25 years, or any subsequent period, excuting and acknowleding an agreement or agreements in writing, extending the time as to said covenants and restrictions and filing the same of record in the office of the Recorder of Deeds of Jackson County, Missouri, at Kansas City.'
On May 6, 1940, there was filed for record an extension agreement signed by the owners of property in the addition representing a majority of the front feet in the addition. Anything over 2153.075 feet constituted a majority. The agreement contained the following: 'Now, Therefore, The undersigned owners of the certain lots and tracts in said addition set opposite their respective names, agree that all the restrictions, covenants and reservations expressed on the face of the plat of Hinkle Place, shall be extended for a period of twnety-five (25) years from September 1st, 1946, as to all the lots in said Hinkle Place; except the South 40 feet of Lot 8, Lots 9 to 12, inclusive, Lots 27 and 28 and Lots 41 to 50, inclusive, which excepted lots are not included in this extension agreement.'
On July 20, 1940, an extension agreement was recorded containing the following: '* * * that each and every one of said restrictions set forth on the recorded plat of said Hinkle Place shall be and is hereby extended for a period of 25 years from the 1st day of September, 1946, said 1st day of September, 1946, being the date of the expiration of the first and original restriction.'
This agreement was likewise signed by property owners of the addition owning a majority of the front feet in Hinkle Place.
Then on August 27, 1946, there was filed for record an extension agreement similar to the first agreement filed on May 6, 1940. This paper was signed by parties owning 808.22 front feet in Hinkle Place. Property owners of 427.51 front feet signed both the second and third agreements. If 427.51 front feet were taken from the total number of front feet represented in the second agreement, it would leave that agreement without signers representing a majority of front feet in the addition.
Appellants in their brief say that the second agreement was made ineffective and was cancelled by the third because this third agreement was signed by the owners of 427.51 feet frontage who had signed the second agreement. It is contended that when these parties signed the third agree ment they thereby withdrew their names from the second, thus leaving the second without sufficient support.
The defendants say that the extension provision did not authorize the owners of a majority of front feet in Hinkle Place to exempt any one or more lots from the restrictions; that such majority owners had the power to modify any or all of the restrictions but not to exempt some lots and extend and enforce the restrictions as to others. They say further that the first and third purported agreements are, therefore, void. This calls for an interpretation of the provision granting the power to extend the restrictions. Note how the grant of power reads: 'Said period of 25 years during which the aforesaid restrictions shall be enforced may be extended as to any or all of said restrictions for additional periods not exceeding 25 years each, * * *.' Nothing was said about exempting one or more lots from the restrictions, but the clause specifically limits authority to modify the restrictions. Certainly no prospective purchaser of a lot in Hinkle Place when reading the clause above-quoted would understand that the owners of a majority of front feet in the subdivision would have the power to release the lots adjoining his lot from the restrictions and continue them as to others.
In Hisey v. Eastminster Presbyterian Church, 130 Mo.App. 566, 109 S.W. 60, 61, property owners brought suit to restrain the building of a church. The defendants claimed that a clause in the grantors' deed creating the restrictions which read, "it being understood that the covenants and restrictions referred to in this paragraph may be varied by said party of the first part as occasion may...
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