Cook v. Tide Water Associated Oil Co.

• Decision Date: 28 July 1955
• Docket Number: No. 7356,7356
• Citation: 281 S.W.2d 415
• Parties: W. F. COOK and Ella E. Cook, Plaintiffs-Respondents. v. TIDE WATER ASSOCIATED OIL COMPANY, a corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 415

281 S.W.2d 415

W. F. COOK and Ella E. Cook, Plaintiffs-Respondents. v. TIDE WATER ASSOCIATED OIL COMPANY, a corporation, Defendant-Appellant.

No. 7356.

Springfield Court of Appeals, Missouri.

July 28, 1955.

Mann, Mann, Walter & Powell, Springfield, for defendant-appellant.

Lincoln, Lincoln, Haseltine, Forehand & Springer, Springfield, for plaintiffs-respondents.

STONE, Judge.

In this jury-tried action for damages on a bond, defendant appeals from an adverse judgment of $3,000. On June 14, 1924, W. W. and Mary L. Viles, the then owners of a larger tract at the southwest corner of South National Boulevard and East Grand Street in Springfield, Missouri, by warranty deed in conventional form and for a recited consideration of $1,500, conveyed to Independent Oil Company, Inc. (hereinafter called Independent), the corner lot 50 feet wide, north and south, and 180 feet deep, east and west (hereinafter referred to as the corner lot). On May 1, 1926, Indepdent executed an instrument captioned 'Bond' (and hereinafter called the bond), but also referred to in the instrument itself as 'this bond and agreement' and 'this agreement,' the pertinent provisions of which are set out in the margin. ¹ The bond was recorded on May 3, 1926. On April 1, 1929, Independent conveyed the corner lot to Tide Water Oil Sales Corporation, a Delaware corporation (hereinafter called Tide Water Oil Sales), 'subject, however, to the conditions and restrictions contained in that certain bond executed by Independent * * *, as obligor in favor of W. W. Viles, as obligee, shown of record * * * in the Recorder's office of Greene county, Missouri.' By warranty deed dated May 28, 1930, which restricted use to 'residential purposes,' the Viles conveyed to W. F. and Ella E. Cook, plaintiffs herein, the lot 50 feet wide, north and south, and 180 feet deep, east and west, adjacent to and south of the corner lot. 'Immediately after' the Cooks had purchased their lot and prior to their construction of a seven-room brick dwelling thereon in 1930, Mr. Viles delivered the original bond to them.

On December 31, 1932, Tide Water Oil Sales conveyed to Tide Water Oil Company, an Oklahoma corporation (hereinafter called Tide Water of Oklahoma), four tracts in Greene County, Missouri, including the corner lot 'subject, however, to the conditions and restrictions contained in that certain bond executed by Independent * * * as Obligor, in favor of W. W. Viles, as Obligee, shown of record * * * in the Recorder's office of Greene County, Missouri.' On August 5, 1936, Tide Water of Oklahoma conveyed to Tide Water Oil Company, a Delaware corporation (hereinafter called Tide Water of Delaware), the same four tracts including the corner lot described as 'a tract 50' by 180' * * * located at 1001 National Blvd. and being more particularly described in Deed recorded in Book 597, page 311, Records of Greene County, Missouri,' that being the deed from Tide Water Oil Sales to Tide Water of Oklahoma. And, on November 30, 1936, Tide Water of Delaware conveyed to Tide Water Associated Oil Company, defendant herein, the same four tracts including the corner lot described in precisely the same language as that hereinbefore quoted from the prior conveyance from Tide Water of Oklahoma to Tide Water of Delaware.

In 1953, defendant constructed on the corner lot a concrete block building approximately 27 feet square and 13 feet high to be used for washing and lubrication of motor vehicles. The southwest corner of this building is about 12 to 15 feet from the front porch of plaintiffs' home. Three realtors testified that the reasonable market value of plaintiffs' property had been reduced by not less than $3,000 as a result of construction of the concrete block building and the sufficiency of the evidence as to damages is not questioned on appeal.

In determination of defendant's principal contention that its motion for directed verdict should have been sustained, the meritorious question is whether the bond constituted a covenant running with the land, which is binding upon and enforceable against grantees of Independent, the original covenantor, or is simply a personal or collateral covenant enforceable only against Independent. In considering this question, we must keep in mind that the covenant, i. e., the promise or agreement [Jenkins v. John Taylor Dry Goods Co., 352 Mo. 660, 179 S.W.2d 54, 58(3)], with which we are concerned, was that 'no additional building or buildings shall be erected' on the corner lot. For a restrictive covenant to run with the land, "its performance or nonperformance must affect the nature, quality, or value of the property demised independent of collateral circumstances, or it must affect the mode of enjoyment, and there must be a privity between the contracting parties." ² Or, as the initial requirement has been otherwise stated many times since Spencer's Case, 5 Coke 16a, 77 Eng.Rep. 72, 74, the covenant must 'touch or concern' the land demised. 14 Am.Jur., Covenants, Etc., Section 19, p. 495; Ibid., Sec. 20, p. 496; Thompson on Real Property (Perm.Ed.), 1955 Cum.Supp. to Vol. 7, Section 3620, p. 22.

A covenant of the character under consideration, when expressed in an instrument of conveyance, usually is regarded as in the nature of an easement reserved by the grantor in the land conveyed, appurtenant to his other lands [Bolin v. Tyrol Inv. Co., 273 Mo. 257, 200 S.W. 1059(1), L.R.A.1918C, 869], is a property right [Strauss v. J. C. Nichols Land Co., 327 Mo. 205, 37 S.W.2d 505, 508(8)], and runs with the land. King v. St. Louis Union Trust Co., 226 Mo. 351, 126 S.W. 415, 419; Miller v. Klein, 177 Mo.App. 557, 160 S.W. 562, 566(6). As well-stated in Coughlin v. Barker, 46 Mo.App. 54, 61(1), the general rule long has been that 'where the common grantor of two adjoining lots sells one and retains the other, and puts in the deed of the one which he sells a covenant against building in a certain way, which covenant is manifestly intended for the benefit of the lot which is retained, and he afterwards sells this lot to another the covenant passes to the assign of such lot as an appurtenance to it, or as an easement for the benefit of it, and such assign may enforce it against the owner of the other lot, whether he acquired the other lot immediately from the original vendor or through mesne conveyances, or by devise, descent, or otherwise * * *; provided he took with notice of it, actual or constructive.' And, the same is true with respect to a written agreement restricting use of real estate, ³ for the fact that a restriction is not created by deed but rests on contract does not affect the right to enforce it as a covenant running with the land. ⁴

It seems plain to us that the covenant under consideration, i. e., that 'no additional building or buildings shall be erected' on the corner lot, affected the use, enjoyment and value of that lot and 'touched and concerned' it; and, privity of estate, which connotes a mutual or successive relationship to the same rights of property ⁵ and is essential to the running of a real covenant, ⁶ was present in the instant case both as between the original covenantor and covenantees, namely, Independent and the Viles, and as between the original covenantor and defendant. Consult 23 K.C.R. 3, 11-13. However, relying upon the well-established principle that restrictive covenants are not favored in law and that, where there is reasonable and substantial doubt as to the meaning thereof, such doubt is to be resolved in favor of the free and untrammeled use of property, ⁷ defendant's counsel earnestly and ably argue that the bond was the personal obligation of Independent and did not run with the land. In considering this contention, we bear in mind that construction of a restrictive agreement is governed by the same general rules which are followed in construing any contract or covenant [Strauss v. J. C. Nichols Land Co., supra, 37 S.W.2d loc. cit. 508; Porter v. Johnson, supra, 115 S.W.2d loc. cit. 533(11)]; that the construction of an agreement of doubtful meaning should be such as is fair and reasonable between the parties [Gabel-Lockhart Co. v. Gabel, 360 Mo. 518, 229 S.W.2d 539, 543(3); Industrial Bank & Trust Co. v. Hesselberg, Mo., 195 S.W.2d 470, 476(19)]--'a reasonable and natural construction, one that the parties would, as reasonable and intelligent men, be likely to make, and not a useless or whimsical contract resulting in no good to either party' [Jackson County Light, Heat & Power Co. v. City of Independence, 188 Mo.App. 157, 175 S.W. 86, 90(6)]; and, that "(c)ommon sense and good faith are the leading characteristics of all interpretations." Veatch v. Black, 363 Mo. 190, 250 S.W.2d 501, 507; Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262, 268.

Furthermore, '(t)he just interpretation of a contract arises on the whole subject-matter. It must be viewed from end to end and corner to corner, and all its terms pass in review; for one clause may modify, limit, or illuminate the other.' Mathews v. Modern Woodmen of America, 236 Mo. 326, 139 S.W. 151, 155. The entire agreement must be considered in determining the meaning of each part thereof; ⁸ and, although effect should be given to every part of the agreement, if that be fairly and reasonably possible, ⁹ seeming contradictions should be harmonized away to effectuate the underlying purpose of the parties as evidenced by the whole instrument. ¹⁰

But, notwithstanding the fact that all of the foregoing principles must be accorded their proper place, the primary and cardinal rule, which permeates and pervades the entire field of construction, is that the court should ascertain the intention of the parties and then give effect thereto unless it conflicts with some positive rule of law. That greater regard is to be accorded to the clear intention of the parties than to any particular language used in attempting to express that intention [Veatch v....