Strauss v. J. C. Nichols Land Co.

Decision Date25 March 1931
Docket Number29352
Citation37 S.W.2d 505,327 Mo. 205
PartiesBen 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
CourtMissouri Supreme Court

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.

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 restrictions applicable to certain lots in that addition. The defendant J. C. Nichols Land Company filed the plat of the addition. The J. C. Nichols Investment Company later became interested in the property. The remaining defendants were owners of lots or parts of lots in that addition. The judgment was for defendants, and the plaintiffs appealed.

The accompanying plat shows the lots affected by the restrictions.

The plaintiff Strauss owned lot 9 in Block 12; the plaintiff Denham owned 66 feet of lot 1 in Block 12; plaintiff Ozias owned lot 11 in Block 11; plaintiff Mellier owned lot 14 in Block 11. The defendants Aycock, Shouse, Howard, Wahl, Cotton and Standard Oil Company owned lots in Blocks 11, 12 and 13. The plaintiffs and the last named defendants acquired their several lots either directly or through mesne conveyances from the Nichols Land Company. The plat of the addition contains this stipulation:

"All persons, including corporations, who now own or shall hereafter acquire any land in Block 11 and in Lots 1 to 9 inclusive of Block 12 described in this plat shall be taken and held to agree and covenant with the owner of the above described land and with its successors and assigns to conform to and observe the following restrictions, and stipulations as to the use thereof and construction of the improvements thereon for a period of 20 years, from October 9, 1912, to-wit:"

Then follow five paragraphs enumerating restrictions governing the uses to which the lots should not be put, the kind of buildings to be [SEE ILLUSTRATION IN ORIGINAL] erected upon them, their distance from the street, and providing among other things that the lots should not be improved, used or occupied for other than residence purposes. Then came this provision, the construction of which is the matter at issue in this case:

"That said period of 20 years during which the aforesaid covenants and restrictions shall be in force may be extended as to any or all of said covenants and restrictions for additional periods not exceeding 20 years each by the owners of a majority of front feet in Block 11 and of Lots 1 to 9, inclusive of Block 12, of said Addition prior to the expiration of the first 20 years or any subsequent 20 years executing and acknowledging 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."

The plat was filed October 9, 1912. April 15, 1924, twelve years later, an agreement to extend the time of the restrictions which the plaintiffs seek to set aside, was executed. After reciting that the restrictions on the face of the plat of the Wornall Homestead were to remain in force for twenty years from the date thereof, and that they might be renewed for additional periods of time not exceeding twenty years each "by the owners of the majority of the front feet of said addition then restricted prior to the expiration of the first twenty years' period or of any successive twenty-year period thereafter," etc., the...

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