Davies v. McDowell
| Decision Date | 04 April 1977 |
| Docket Number | No. KCD,KCD |
| Citation | 549 S.W.2d 619 |
| Parties | Jay F. DAVIES et ux., Respondents, v. Lena McDOWELL et al., Appellants. 28315. |
| Court | Missouri Court of Appeals |
Roger J. Barbieri, Barbieri, Combs & Gotschall, Kansas City, for appellants.
Warren S. Earhart, Gersh, Holt, Earhart, Jones & Dibler, Grandview, for respondents.
Before SHANGLER, P. J., and SWOFFORD and SOMERVILLE, JJ.
The parties to this action are the owners of adjoining duplex homes sharing a party wall. The respondents (plaintiffs) are husband and wife, and the appellants (defendants) are a widow and her son and daughter and each owns their respective properties in fee simple.
The plaintiffs brought this action seeking specific performance of a certain covenant in a "Party Wall Agreement" concerning the common wall separating the properties. This document was executed on August 5, 1966 by the developer of the residential area, Raytown Land Company, and was filed of record and contains perpetual covenants running with their land. Each of the parties took title to their properties subject to such covenants. The plaintiffs' claim was that the defendants violated a provision of these covenants in failing to notify the plaintiffs of a sale of defendants' property and failing to recognize plaintiffs' preemptive right to purchase such property. They asked for a decree of specific performance of the terms of the agreement and a decree vesting title to the defendants' property in them, and for money damages for rentals of which they were deprived.
The case was tried before the court below, without a jury, and the court entered a decree and judgment ordering specific performance and the transfer of defendants' property to the plaintiffs upon the payment to the defendants of $16,750.00; found that plaintiffs had been damaged by loss of rentals in the amount of $4,495.00 and allowed such sum as an offset against the $16,750.00, leaving a net payment due to defendants of $12,255.00. Upon the payment of such sum, the defendants were ordered to execute a deed of conveyance to plaintiffs; and, in the event of their failure to do so, the defendants were divested of their title upon the payment of such sum into the registry of the court. After an unavailing motion for a new trial, the defendants appeal.
They raise two points on this appeal. First, that the court erred in entering judgment for the plaintiffs and in holding that the Party Wall Agreement gave the plaintiffs a preemptive right to purchase the defendants' property as such agreement was void and unenforceable in that it violates the Rule Against Perpetuities and represents an unreasonable restraint on alienation. Second, the court erred in awarding damages to the plaintiffs for lost rentals because such items were special damages that should have been (but were not) pleaded, communicated to the defendants, all expenses should be considered before arriving at proper damages, and that evidence of rental value alone is insufficient to support the damage award.
The Party Wall Agreement filed of record by the Raytown Land Company in August of 1966 contains the following provisions pertinent to this appeal:
"PARTY WALL AGREEMENT
WHEREAS, Raytown Land Co., a Missouri corporation, duly qualified to conduct business in the State of Missouri, is the owner in fee of the following described real estate, * * * and
WHEREAS, said owner has constructed on said premises for sale to various and sundry persons, a multiple dwelling composed of two (2) dwelling units connected by a division or party wall and said owner proposes to sell said property in two (2) lots or parcels, which parcels are as follows:
NOW, THEREFORE, the undersigned, in order to protect each and every purchaser, his heirs and assigns, of any such dwelling unit, the following easements on building structures and party walls located on said premises are hereby created, to-wit:
12. If any owner of a dwelling unit other than Raytown Land Co. shall desire to sell the same, and shall at any time, or from time to time, receive an acceptable bona fide offer from a stranger in ownership to purchase the same, he shall give notice thereof by registered mail addressed to the other owner at the dwelling unit owned by him, setting forth all of the terms and conditions of said offer. If, within thirty (30) days after receipt of such notice, the other owner has not, in writing, accepted and agreed to fulfill the same terms of sale as those received from such stranger in ownership, then provided he has obtained the consent required in paragraph 11, 1 the owner desiring to sell, may sell his dwelling unit to such stranger in ownership.
13. The easements hereby created are and shall be perpetual and shall be construed as covenants running with the land. * * * " (Emphasis supplied)
The plaintiffs sought and were granted a decree of specific performance of the right of preemptive purchase as provided in paragraph 12.
There is no relevant dispute as to the factual background of this case. The plaintiffs acquired their property by warranty deed dated July 21, 1970, wherein the defendant, Lena McDowell, and Mary E. Malone were the grantors. Plaintiff Jay Davies testified that when this deed was delivered, a copy of the Party Wall Agreement was also given him, although Mrs. McDowell testified that she was never aware of the existence of the agreement or of its contents until this dispute arose.
On February 13, 1973, the defendants sold their duplex to Kathleen M. Rowen, a single person, and Lawrence T. Rowen and Theresa M. Rowen, husband and wife, for $16,750.00 and delivered a warranty deed of conveyance. 2
No consent was obtained from the plaintiffs under paragraph 11 nor notice given to them under paragraph 12 of the agreement. Mr. Davies learned of the Rowen purchase on February 18, 1973 and advised the defendants by letter of his desire to exercise his preemptive right to purchase the property under date of February 20, 1973. This was followed by a formal notice by certified mail to all concerned parties under date of March 5, 1973 of the exercise of the preemptive right to purchase under the same terms as the Rowen sale in accordance with paragraph 12 of the Party Wall Agreement. He testified that although he was at all times ready, willing and able to complete the purchase, he never received any acceptance of his offer.
Under date of May 22, 1973, he received a letter from the attorney for the defendants requesting permission to rent the McDowell-Nichols duplex to a Rich Baldwin. Plaintiffs' attorney responded on their behalf refusing such consent, reaffirming the plaintiffs' right of preemption purchase, and repeating the plaintiffs' offer to purchase.
Mrs. McDowell testified that the Rowens had deeded the property back to the defendants, such deed being dated April 27, 1973 and recorded May 18, 1973, and she had returned the entire purchase price and reimbursed the Rowens for their expenses. This transpired after the instant suit was commenced. She thereupon rented the property to Rich Baldwin for $175.00 per month. She admitted that she never offered the property to the plaintiffs, as required by paragraph 12, nor obtained their consent to the Rowen sale as required by paragraph 11. She denied any actual knowledge of the Party Wall Agreement prior to the Rowen sale. No request for consent or notice of the Rowen sale was given to the plaintiffs by the Nichols or anyone acting on their behalf.
It should be here noted that the whole thrust of plaintiffs' petition, their evidence, trial theory and request for relief centers on the preemptive right created by paragraph 12 of the Party Wall Agreement and it is that right only which they sought to enforce and which the decree of specific performance protected.
The fact that no consent to the Rowen sale was ever sought or given under paragraph 11 is only incidental to the primary issue here presented. Appellant strongly attacks paragraph 11 of the agreement (Footnote No. 1, supra) as illegal and void because it is an improper restraint upon the right of alienation, an inseparable incident to an estate in fee simple, and there is substantial merit and logic in that position. Such contentions, however, need not be and are not decided here.
The issue on this appeal, thus narrowed, is whether or not paragraph 12 of the Party Wall Agreement considered with the other terms of the agreement violates the Rule Against Perpetuities. The conclusion is reached that it does.
At the outset, it is necessary to note a common misconception concerning the Rule Against Perpetuities which misconception is embraced in respondents' brief wherein it is argued that the preemptive right of purchase does not violate the rule because there are always persons in being who can convey the entire fee estate. The cases cited in support of this position, Stevens v. Annex Realty Co., 173 Mo. 511, 73 S.W. 505 (1903); Noel v. Hill, 158 Mo.App. 426, 138 S.W. 364 (1911); Melvin v. Hoffman, 290 Mo. 464, 235 S.W. 107 (banc 1921); Pierce v St. Louis Union Trust Co., 311 Mo. 262, 278 S.W. 398 (1925), are not in point. Examination of the decisions reveals they held either (1) that the interest vested absolutely and the Rule Against Perpetuities did not apply, or (2) spoke to the problem only in the terms of restraints upon alienation, or (3) like respondents, confused the Rule Against Perpetuities with the Rule Against Unreasonable Restraints on Alienation.
The Rule Against Perpetuities and the Rule Against Unreasonable Restraints on Alienation, however closely akin, are two distinct rules of property. The former is a rule against remoteness in the vesting of title while the latter deals only with existing limitations restricting alienation. Otherwise stated, "The rule against perpetuities fixes the time within which a future interest must vest, while the rule against restraints on alienation is to prevent...
To continue reading
Request your trial
-
Ferrero Const. Co. v. Dennis Rourke Corp.
...v. French, 362 Mich. 546, 549, 107 N.W.2d 758, 759 (1961); Beets v. Tyler, 365 Mo. 895, 903, 290 S.W.2d 76, 82 (1956); Davies v. McDowell, 549 S.W.2d 619 (Mo.App.1977); North Bay Council Inc. v. Grinnell, 123 N.H. 321, 461 A.2d 114 (1983); Ross v. Ponemon, 109 N.J.Super. 363, 370, 263 A.2d ......
-
Cambridge Co. v. East Slope Investment Corp., 83SC261
...v. Reagan, 321 So.2d 133 (Fla.App.1975); Martin v. Prairie Rod and Gun Club, 39 Ill.App.3d 33, 348 N.E.2d 306 (1976); Davis v. McDowell, 549 S.W.2d 619 (Mo.App.1977); Melcher v. Camp, 435 P.2d 107 (Okla.1967); see also Smith v. Mitchell, 301 N.C. 58, 29 S.E.2d 608 (1980) (preemption at offe......
-
Hensley-O'Neal v. Metropolitan Nat. Bank
...Respondent could rely upon the rule against perpetuities without having to specifically so state in its answer. See Davies v. McDowell, 549 S.W.2d 619, 624-25 (Mo.App. 1977). Additionally, the application of the rule against perpetuities to the PRC was litigated below, as shown by the trial......
-
Smith v. VanVoorhis
...v. The City of Englewood, supra; Neustadt v. Pearce, 145 Conn. 403, 143 A.2d 437 (1958); Pace v. Culpepper, supra; Davies v. McDowell, 549 S.W.2d 619 (Mo.Ct.App.1977); Forderhouse v. Cherokee Water Company, 623 S.W.2d 435 (Tex.Civ.App.1981); Robroy Land Co. v. Prather, 95 Wash.2d 66, 622 P.......
-
CHAPTER 11 PREFERENTIAL PURCHASE RIGHTS
...___ Colo. ___, 614 P.2d 362, 366 (1980); Sanchez v. Dickinson, 551 S.W.2d 481, 485 (Tex. Civ. App. 1977); see also Davies v. McDowell, 549 S.W.2d 619, 624 (Mo. App. 1977). [30] See 7 G. Thompson, The Law of Real Property §3152 at 75 (1962). [31] See discussion in Section III.D. infra at 11-......