Beets v. Tyler
| Decision Date | 09 April 1956 |
| Docket Number | No. 44890,No. 1,44890,1 |
| Citation | 365 Mo. 895,290 S.W.2d 76 |
| Parties | Chadwick H. BEETS and Eleanor Beets, Appellants, v. Amie Louise TYLER, Respondent |
| Court | Missouri Supreme Court |
Rufus Rurrus, Independence, for appellants.
Warren S. Earhart, Kansas City, for respondent.
Hall, Bresler & Cohn, Harry A. Hall, Kansas City, amicus curiae.
HOLMAN, Commissioner.
In this action to try and determine the respective rights of plaintiffs and defendant in regard to certain real estate the plaintiffs sought a decree to the effect that they were entitled to purchase the said real estate, in accordance with an option privilege hereinafter more fully described, and a decree of specific perfomance to effectuate said right. Plaintiffs also prayed that they be awarded as damages 'the reasonable monthly rental value of said premises, from this date until the possession thereof is delivered to them.' Plaintiffs appeal from the order and judgment of the court dismissing their amended petition upon the motion of defendant which alleged that said petition 'does not state a claim or cause of action upon which relief can be granted.' Since the petition sought a transfer of the title to certain real estate from defendant to plaintiffs our jurisdiction is obvious. Article V, Sec. 3, Constitution of Missouri, 1945, V.A.M.S.
Plaintiffs' petition rather fully states the facts upon which they rely. However, to a limited extent, we may state some facts appearing in various exhibits attached to said pleading. Under Section 509.130 RSMo 1949, V.A.M.S., such exhibits are a part of the petition for all purposes and may be considered in passing upon the sufficiency thereof. Corbin v. Hume-Sinclair Coal Mining Co., 361 Mo. 888, 237 S.W.2d 81.
It appears in the petition that the property involved therein is located in a residential subdivision in Jakson County called 'Lake Lotawana.' The tract of 1,500 acres which was utilized for this subdivision was owned by the Lake Lotawana Development Company. This company, in about 1928 or shortly prior thereto, constructed a dam and created a large lake which covered an area of about 600 acres. In developing the surrounding area for recreational and homesite uses, roads were built and all but three blocks were subdivided, thus providing more than 1,800 lots. Many of these lots have been sold and more than 500 dwelling houses have been built thereon.
As a part of the plan of development certain restrictive covenants were included in every conveyance made by the Development Company. The issue to be determined on this appeal involves one of the restrictive provisions contained in said deeds, as follows: It is also provided in the deeds that the covenants and restrictions 'shall run with the land and bind all subsequent owners of said lot until and including Junuary 1, 1948,' and that 'said restrictions may by extended beyond said twenty-year period, for a new period, not exceeding twenty years, by an instrument executed by the then owners of majority of the front feet in said subdivision and duly acknowledged and recorded in the recorder's office of said Jackson County before the expiration of said twenty-year period; and further extensions may be effected in like manner.'
It is further alleged that the said restrictions and covenants were extended for an additional period of 20 years from and after January 1, 1948, by an instrument filed for record on October 7, 1947, which was signed by plaintiffs and defendant and others owning in the aggregate, at that time, a majority of the front feet in the whole of said subdivision.
It further appeared that plaintiffs owned all of Lots 22, 23, and 40 except the west 40 feet of Lot 23, all in Block 'B'. Defendant owned the west 40 feet of Lot 23 and all of Lots 24 and 39 also in Block Lot 40 adjoins the east side of defendant's Lot 39 and that plaintiffs and defendant each own a part of Lot 23 on the south side of the drive so that plaintiffs own the 60 feet east of the division line (Lot 22 and east 10 feet of Lot 23) and defendant owns 90 feet to the west of said line (Lot 24 and west 40 feet of Lot 23). Plaintiffs formerly owned all of Lot 23 and had sold the west 40 feet thereof to defendant.
Plaintiffs further alleged that defendant, on September 21, 1954, entered into a written contract to sell all of her above-described real estate to Marshall and Betty C. Long for the sum of $9,000. The contract provided for the payment of $1,000 upon the signing thereof and that the balance be paid upon delivery of the deed. Other provisions therein were about the same as those usually found in such contracts except the following:
It was alleged that October 7, 1954, plaintiffs received formal notice from defendant of said contract of sale as follows: 'You are hereby notified that I have contracted to sell the west 40 feet of Lot 23, all of Lot 24, and all of Lot 39, all in Block B, Lake Lotawana, a subdivision in Jackson County, Missouri, according to the recorded plat thereof, to Marshall Long and Betty C. Long, a copy of such contract being attached hereto and made a part hereof.' Immediately thereafter, on said date, plaintiffs gave notice to defendant and to the purchasers that they were exercising the option given them as adjoining lot owners to purchase the said lots on the same terms as contained in said contract and delivered to defendant the sum of $1,000, the down payment provided for in the contract. It is then alleged that defendant has failed and refused to deliver to plaintiffs the abstract of title or to make and deliver a warranty deed conveying the said lands to plaintiffs or to otherwise consummate the said sale, and that plaintiffs are ready, willing and able to pay the balance of the purchase price to defendant upon her compliance with the said agreement.
The contract in question, when considered in connection with the provisions of the foregoing restrictive covenant or option, is unusual in two respects, i. e., (1) there are three lots, or portions thereof, sold as a unit for one total consideration instead of such being separately stated as to each lot, and (2) defendant reserved a limited personal use of the residence with the purchasers to furnish her certain services of a somewhat personal nature.
Defendant's first point is that the petition does not state a claim because a court of equity will not decree specific performance of a contract to render personal services and hence there is no mutuality of remedy. It is, of course, a well-established general rule that equity will not ordinarily decree specific performance of a contract for personal services. Richardson v. Ozark Airlines, Mo.Sup., 270 S.W.2d 8. However, we do not deem it necessary to determine whether defendant could obtain a decree of specific performance of plaintiffs' agreement to furnish her room and board upon her visits to her former hime. This, for the reason that mutuality of remedy is not always essential to a decree of specific performance. Rice v. Griffith, 349 Mo. 373, 161 S.W.2d 220. We think it clear that the instant case is one where plaintiffs, as a requirement for the decree sought, need not show that specific performance is obtainable by each of the parties to the contract.
As will hereafter more fully appear, we think the restrictive covenant in question is reasonable and valid. It should be made clear at the outset that many of the agruments advanced by defendant for the nonenforceability of the so-called option arise from the unusual nature of the contract defendant entered into with the Longs. It may be assumed that she understood that the said covenant constituted a restraint upon her right to sell the property to any person of her choosing and that such difficulties might arise as a result of a contract of this nature. In a proper case it might be held that a property owner in this subdivision, by purchasing property subject to these restrictions, has lost the right to enter into a contract as unusual and out of the ordinary as the instant one. Provisions of that nature could be so repugnant to the average adjoining lot owners as to effectively destroy, for all practical purposes, the right to purchase. However, we need not reach that question in this case as plaintiffs allege that they are willing to purchase on the terms agreed to by the Longs. We do say, however, that this contract was of defendant's own making and equity will not permit her to say that plaintiffs may not have specific performance thereof because of difficulties that may arise by reason of the peculiar provisions she saw fit to place therein.
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