37 S.W.2d 505 (Mo. 1931), 29352, Strauss v. J. C. Nichols Land Co.

Docket Nº29352
Citation37 S.W.2d 505, 327 Mo. 205
Opinion JudgeWhite, J.
Party NameBen R. Strauss, D. D. Denham, C. R. Ozias and Ella M. Mellier, Appellants, v. J. C. Nichols Land Company, J. C. Nichols Investment Company, Robert V. Aycock, J. L. Shouse, Frank Howard, H. R. Wahl, Fred L. Cotton and Standard Oil Company of Indiana
AttorneyGossett, Ellis, Dietrich & Tyler for appellants. McCune, Caldwell & Downing, Meservey, Michaels, Blackmar and Newkirk & Eager for respondents.
Case DateMarch 25, 1931
CourtUnited States State Supreme Court of Missouri

Page 505

37 S.W.2d 505 (Mo. 1931)

327 Mo. 205

Ben R. Strauss, D. D. Denham, C. R. Ozias and Ella M. Mellier, Appellants,

v.

J. C. Nichols Land Company, J. C. Nichols Investment Company, Robert V. Aycock, J. L. Shouse, Frank Howard, H. R. Wahl, Fred L. Cotton and Standard Oil Company of Indiana

No. 29352

Supreme Court of Missouri

March 25, 1931

Appeal from Jackson Circuit Court; Hon. O. A. Lucas, Judge.

Affirmed.

Gossett, Ellis, Dietrich & Tyler for appellants.

(1) In restricting property from ordinary and natural uses to which an owner may put it, of any and all such restrictive provisions or agreements, if capable of two or more interpretations that construction should be adopted which, if not contrary to plain reason, will permit the more unlimited use of the land. The construction should be against the restricting grantor and in favor of the more unlimited use by the grantee against whom the restriction is claimed. Grooms v. Morrison, 249 Mo. 544; Zinn v. Shidler, 268 Mo. 680; Bolin v. Tyrol Inv. Co., 273 Mo. 257; Morrison v. Hess, 231 S.W. 997; Missouri Province Educational Inst. v. Schlect, 15 S.W.2d 770; Charlot v. Regent's Corporation, 251 S.W. 423; Kitchen v. Hawley, 150 Mo.App. 497; Conrad v. Boogher, 201 Mo.App. 644. (2) The restrictions extension provision, set forth in the paragraph or clause 6 of the restrictive specifications written on the plat of Blocks 11, 12, 13 and A of Wornall Homestead, in fair reasoning, can and should be read as meaning that an extension of the limitations upon the uses of the north half, or Lots 1 to 9, of Block 12, should only be effectuated by an instrument or counterpart instruments executed by the owners of a majority of front feet in Block 11 and, also, executed by the owners of Lots 1 to 9 in Block 12, agreeing to extend, for additional periods not to exceed twenty years each, "any or all of said covenants and restrictions." This is the plain, simple and most reasonable construction of the language in question. (3) Regardless of which construction may be placed upon it, by the original agreement for extending the restrictions (par. 6) each lot owner in Block 11 and north half of Block 12 gave to other such lot owners a power in trust. Under one construction, this power would be to the owner or owners of the majority of the aggregate front feet, in all the lots; under another construction, which we contend for, it was given to the owner or owners of the majority of front feet in Block 11 and the owners of Lots 1 to 9 in Block 12; and under construction number 3, it was given to the owner or owners of the majority of front feet in Block 11, plus the owner or owners of the majority of front feet in Lots 1 to 9 of Block 12. We submit no other than these three constructions are possible. In either case the parties stood in the relation among themselves as grantors of a power in the nature of a mutual confidence and trust. It implied exercising of it only in good faith, free from being misled, or overpersuasion or undue influence, and that the power granted should not be exceeded. If the act of an attorney in fact or a trustee in excess of the power is so commingled with that which he might possibly do, as to be inseparable and interdependent in consideration and motivation, the entire attempted act is voidable at suit of any party whose rights may be affected. Studebaker v. Cofield, 159 Mo. 612; Toothaker v. Pleasant, 315 Mo. 1239; Andrews v. Broughton, 78 Mo.App. 180; Kerr on Fraud & Mistake, 182; 14 Eng. & Am. Ency. Law (2 Ed.) 21; Turner v. Turner, 44 Mo. 435; Summers v. Abernathy, 234 Mo. 157; 1 Perry on Trusts (7 Ed.) 17, sec. 27; Black's Law Dictionary, 1192; Bick v. Seal, 45 Mo.App. 475; 25 C. J. 1119; 2 Pomeroy Equity Juris. (3 Ed.) sec. 951, p. 1736. The trial court found, and could not on any theory have done otherwise than find, to be absolutely void the automatic perpetuating feature of the attempted extension agreement, Exhibit B. That paper was placed of record by respondents and clouds our titles. Yet the court, so necessarily finding on conclusive, uncontradicted and admittedly true documentary evidence, granted appellants no relief by its judgment and assessed all the costs against appellants, and none against respondents, who were contesting for and striving to uphold every provision of the paper, Exhibit B.

McCune, Caldwell & Downing, Meservey, Michaels, Blackmar and Newkirk & Eager for respondents.

(1) The provision for the extension does not require that the same shall be signed by all the owners of Lots 1 to 9 inclusive of Block 12. A majority only is required. Coquard v. Bank of Kansas City, 12 Mo.App. 261; Citizens and Taxpayers v. Williams, 37 L. R. A. 761; School District v. Oellien, 209 Mo. 469; Davis v. Claus, 100 S.W. 265, 125 Ky. 4; Polheumus v. DeLisle, 130 Mo.App. 618; Green v. Gemer, 283 S.W. 615. (2) The rule of strict construction of covenants restricting the use of real estate is only applicable where the language is ambiguous. 18 C. J. 388; Feinberg v. Board of Education, 210 Ky. 737, 276 S.W. 823; Noel v. Hill, 158 Mo.App. 426; King v. Union Trust Co., 226 Mo. 365; Miller v. Klein, 177 Mo.App. 557; Spahr v. Cape, 143 Mo.App. 114; Morrison v. Hess, 231 S.W. 997; Peters v. Buckner, 288 Mo. 631; Wymer v. Yelling, 132 A. 809, 286 Pa. 33; Austin v. Richardson, 278 S.W. 513; Schuman v. Schecter, 213 N.Y.S. 446; Reed v. Hazard, 87 Mo.App. 547. (3) The extension agreement was not obtained by fraud, actual or constructive, nor was there any abuse of any fiduciary relationship. Bolin v. Tyrol Inv. Co., 273 Mo. 257; Peters v. Buckner, 288 Mo. 618; Town of Stanford v. Vuono, 143 A. 245; Stewart v. Alpert, 159 N. E. (Mass.) 503; Levoing v. Clemm, 30 S.W.2d 590. (4) Plaintiffs cannot recover for an alleged fraud perpetrated on the signers of the extension agreement. 27 C. J. 6; Priest v. White, 89 Mo. 609; Parker v. Roberts, 116 Mo. 662; Webb v. Rockefeller, 195 Mo. 57; Ready v. Smith, 170 Mo. 163. (5) The fact that appellants' property might be more valuable and usable for business purposes than for residence purposes is immaterial. 18 C. J. 386; Noel v. Hill, 158 Mo.App. 426; Spahr v. Cape, 143 Mo.App. 114; Reed v. Hazard, 187 Mo.App. 547. (6) The insertion of the additional agreement, applicable only to the property of those who signed it, and providing for the automatic continuance of the restrictions for successive periods of twenty years each, until released by agreement, did have the effect of annulling the extension agreement itself.

OPINION

White, J.

Page 506

[327 Mo. 208] The plaintiffs as owners of lots in the Wornall Homestead, an addition to Kansas City, brought this suit to set aside an agreement to extend certain building...

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  • 134 S.W.2d 39 (Mo. 1939), 36128, White v. Kentling
    • United States
    • Missouri United States State Supreme Court of Missouri
    • December 13, 1939
    ...Ashbough v. Ashbough, 273 Mo. 353. In construing a deed, intent of parties must control and be given effect. Straus v. Nichols Land Co., 37 S.W.2d 505. No evidence to show Frank Kentling is only survivor of grantors. He who asserts survivorship must prove it. Abrams v. Unknown Heirs, 317 Mo......
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 12, 1951
    ...Porter v. Johnson, 115 S.W.2d 529, 232 Mo.App. 1150; Spahr v. Cape, 122 S.W. 379, 143 Mo.App. 114; Strauss v. J.C. Nichols Land Co., 37 S.W.2d 505, 327 Mo. 205; 18 C.J., p. 404, sec. 469. (2) Changed conditions in the territory adjacent to the restricted area or because some lots in the add......
  • 108 S.W.2d 363 (Mo. 1937), Schlafly v. Baumann
    • United States
    • Missouri United States State Supreme Court of Missouri
    • August 26, 1937
    ...49 Mo. 309. (2) Building restrictions create an easement running with the land which is a property right. Strauss v. Nichols Land Co., 37 S.W.2d 508. (3) The easements of the trustees of Washington Terrace and of plaintiffs Schlafly in Lot 24 are assessed in connection, respectively, with t......
  • 235 S.W.2d 375 (Mo. 1951), 41618, Kast v. Kast
    • United States
    • Missouri United States State Supreme Court of Missouri
    • January 8, 1951
    ...S.Ct. 161; Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484; Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262; Strauss v. J.C. Nichols Land Co., 327 Mo. 205, 37 S.W.2d 505; Swinney v. Continental Bldg. Co., 340 Mo. 611, 102 S.W.2d 111. (2) Plaintiff's evidence, even if admitted, would not support......
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24 cases
  • 134 S.W.2d 39 (Mo. 1939), 36128, White v. Kentling
    • United States
    • Missouri United States State Supreme Court of Missouri
    • December 13, 1939
    ...Ashbough v. Ashbough, 273 Mo. 353. In construing a deed, intent of parties must control and be given effect. Straus v. Nichols Land Co., 37 S.W.2d 505. No evidence to show Frank Kentling is only survivor of grantors. He who asserts survivorship must prove it. Abrams v. Unknown Heirs, 317 Mo......
  • 238 S.W.2d 346 (Mo. 1951), 42059, Cowherd Development Co. v. Littick
    • United States
    • Missouri United States State Supreme Court of Missouri
    • March 12, 1951
    ...Porter v. Johnson, 115 S.W.2d 529, 232 Mo.App. 1150; Spahr v. Cape, 122 S.W. 379, 143 Mo.App. 114; Strauss v. J.C. Nichols Land Co., 37 S.W.2d 505, 327 Mo. 205; 18 C.J., p. 404, sec. 469. (2) Changed conditions in the territory adjacent to the restricted area or because some lots in the add......
  • 108 S.W.2d 363 (Mo. 1937), Schlafly v. Baumann
    • United States
    • Missouri United States State Supreme Court of Missouri
    • August 26, 1937
    ...49 Mo. 309. (2) Building restrictions create an easement running with the land which is a property right. Strauss v. Nichols Land Co., 37 S.W.2d 508. (3) The easements of the trustees of Washington Terrace and of plaintiffs Schlafly in Lot 24 are assessed in connection, respectively, with t......
  • 235 S.W.2d 375 (Mo. 1951), 41618, Kast v. Kast
    • United States
    • Missouri United States State Supreme Court of Missouri
    • January 8, 1951
    ...S.Ct. 161; Teague v. Sowder, 121 Tenn. 132, 114 S.W. 484; Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262; Strauss v. J.C. Nichols Land Co., 327 Mo. 205, 37 S.W.2d 505; Swinney v. Continental Bldg. Co., 340 Mo. 611, 102 S.W.2d 111. (2) Plaintiff's evidence, even if admitted, would not support......
  • Request a trial to view additional results