Hudson v. Jones

• Decision Date: 02 May 1955
• Docket Number: No. 22117,22117
• Citation: 278 S.W.2d 799
• Parties: G. R. HUDSON, M.D., and Blanche Hudson, Appellants, v. Parker L. JONES and Irene M. Jones, Respondents.
• Court: Missouri Court of Appeals

Page 799

278 S.W.2d 799

G. R. HUDSON, M.D., and Blanche Hudson, Appellants, v. Parker L. JONES and Irene M. Jones, Respondents.

No. 22117.

Kansas City Court of Appeals, Missouri.

May 2, 1955.

Robert N. Jones, St. Louis, for appellants.

Philip J. Fowler, Kirksville, for respondents.

DEW, Judge.

The plaintiffs brought this action for a declaratory judgment to construe a contract for the purchase of real estate and for a finding of certain alleged breaches thereof by the defendants, together with an award of actual and punitive damages. The first and only pleading by the defendants is a motion by each of them to dismiss the petition on the sole ground that the petition '* * * fails to state and show a claim upon which relief can be granted and wholly fails to state any cause of action against this Defendant'. Upon a hearing of the separate motions the court sustained the same and entered a judgment dismissing the cause. From that judgment the plaintiffs have appealed.

The defendants contend that the court properly sustained the motions to dismiss the petition because the owner failed to state a cause of action on which a declaratory judgment may be rendered, or that the plaintiffs have any interest in the subject matter, and clearly shows that plaintiffs have 'other remedies at law'. Defendants further contend that the petition asks for relief which the court had no power to grant; that under the Declaratory Act defendants would not be awarded the rights to which the law entitles them.

The plaintiffs insist that their petition did state a good cause of action under the Declaratory Judgment Act; that, even if it did not, but was improperly designated as an action under that act, it stated facts sufficient to state a cause of action; that the dismissal did not accord the plaintiffs the presumptions and admissions to which the law entitles them for the purposes of such motions.

The petition states that the parties entered into an agreement in writing May 31, 1950, whereby defendants agreed to convey to the plaintiffs certain real estate under certain conditions provided in the agreement. The contract, set forth in the petition, provided that if the plaintiffs made payment and performed the covenants agreed to by them in the contract, the defendants would convey to them, by good and sufficient warranty deed, the following described property in Adair County Missouri:

'Commencing at a point 95 2/3 rods East of the northwest corner of the Southwest fourth of the northwest quarter of Section 27, Township 62 of Range 15 and running thence South 820 feet, thence West 180 feet more or less or to the East line of a proposed lake site and running thence North and West and meandering along the East line of the proposed lake to the North line of the South Half of the Northwest Quarter, thence East 325 feet more or less to the point of beginning, with the right and privilege of the parties of the first part to build and thereafter maintain the lake which will be adjoining on this property along the West side thereof.'

The contract, as set forth in the petition, further provided that the plaintiffs, their successors and assigns were 'to have the use and privileges of the lake to be built on the West side of their property' and to 'maintain and keep their property herein described as a unit and not sell off lake front property with the privilege of other parties having the use and benefit of said lake'; that plaintiffs would pay as a consideration $3,500, of which $500 was to be paid upon the execution of the contract, receipt of which was acknowledged, and $3,000 on or before March 1, 1951. Provisions were made in the contract for date of possession and for forfeiture upon default by plaintiffs. The contract then provided that: 'The first parties (defendants) to dig a well on the west side of said lake, and the second parties (plaintiffs) to have the privilege of hitching to said well for their water, and to bring said pipes to their property on the east side of said lake across the dam. The first parties (defendants), their heirs or assigns and as a part of the consideration agrees to keep up and maintain the lake site and the dam at their own expense, and to the use and benefit of the second parties (plaintiffs) herein. The well development to be at the expense of first parties'. The contract concluded with a clause that the same was binding upon the heirs, executors, administrators and assigns of the respective parties.

The petition further alleges that the plaintiffs performed all the covenants required on their part by said contract, and that thereafter the defendants executed and delivered to plaintiffs a general warranty deed on March 14, 1951. In this deed, also set forth in the petition, the receipt of the consideration of $3,500 was acknowledged, and the property conveyed thereunder was described as:

'All commencing ninety-five and two-thirds (95 2/3) rods East of the Northwest corner of the Southwest fourth (SW 1/4) of the Northwest Quarter (NW 1/4) of Section Twenty-seven (27) Township Sixty-two (62) of Range Fifteen (15) and running thence South eight hundred twenty (820) feet, thence West one hundred eighty (180) feet more or less or to the East shore line of a proposed lake now under construction and running thence along said lake shore line in a general northwesterly direction to a point on the East line of the Spillway of said lake which is approximately one hundred fifty (150) feet South from the North line of the South Half (S 1/2) of the Northwest Quarter (NW 1/4) of said Section twenty-seven (27), thence West and following along the North Line of the Dam to said lake to a point which is four hundred fifty (450) feet west of the point of beginning, thence North to the North line of the Southwest Quarter (SW 1/4) of the Northwest Quarter (NW 1/4) of said Section Twenty-seven (27), thence East along said North line four hundred fifty (450) feet to the place of beginning. The above described lands being a part of the South one-half (S 1/2) of the Northwest Quarter (NW 1/4) of Section Twenty-seven (27) Township Sixty-two (62) of Range Fifteen (15), with all the rights, privileges use and benefit of the lake adjoining the above described lands. The first party reserved the right to repair and maintain, the dam and the spillway which is on a part of this land, with right of ingress and egress, and necessary dirt for said repair and without damage to first parties, * * * '.

It is next alleged in the petition that: 'The well mentioned in the agreement set forth hereinabove, to be constructed by defendants, was not constructed'; that 'The dam mentioned in the agreement and in the deed, both set forth hereinabove, was partly built by defendants but was not elevated sufficiently to project water even approaching the East-West line 820 _____ South of the North line of the South half of the Northwest Quarter of Section Twenty-seven'; that 'As a consequence, if the agreement and deed are to be construed to obligate defendants to build a water's edge which defendants use in their metes and bounds description, then plaintiffs can not know what land they acquired, and plaintiffs so allege that fact to be'.

'If the agreement and deed are to be construed to obligate defendants to construct a lake running in a general North and South direction for a North and South distance of 670 feet, then plaintiffs have been deprived of a lake for which they contracted, and plaintiffs so allege those facts to be.

'Defendants' failure and neglect to construct a well and lake in accordance with their contracts was malicious and fraudulent and such omission was with a willful and wanton disregard of plaintiffs' rights, and reduced the value of plaintiffs' said premises by the sum of two thousand dollars ($2,000.00).'

The prayer of the petition was as follows:

'Wherefore, plaintiffs pray an order of this Court construing the agreement and deed above and finding that defendants have not sunk a well nor created a lake in keeping with the terms thereof; that such omissions on defendants' part were malicious, fraudulent and designed to enrich the defendants by depriving plaintiffs of...