Jones v. Garden Park Homes Corp.

• Decision Date: 13 September 1965
• Docket Number: No. 51071,No. 2,51071,2
• Citation: 393 S.W.2d 501
• Court: Missouri Supreme Court
• Parties: Willis C. JONES and Betty Jones, Appellants, v. GARDEN PARK HOMES CORPORATION, a corporation, Fischer & Frichtel, Inc., a corporation, Clement McCarthy and Violet McCarthy, Respondents

Page 501

393 S.W.2d 501

Willis C. JONES and Betty Jones, Appellants, v. GARDEN PARK HOMES CORPORATION, a corporation, Fischer &amp Frichtel, Inc., a corporation, Clement McCarthy and Violet McCarthy, Respondents.

No. 51071.

Supreme Court of Missouri, Division No. 2.

Sept. 13, 1965.

Biggs, Hensley, Hughes, Curtis & Biggs, Ward Fickie, St. Louis, for appellants.

Carroll J. Donohue, Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for respondents, Garden Park Homes Corp. and Fischer & Frichtel, Inc.

Maurice L. Stewart, St. Louis, for respondents McCarthy.

STOCKARD, Commissioner.

Plaintiffs have appealed from the judgment of the trial court dismissing their petition at the close of their evidence. By Count I they sought actual and punitive damages in the amount of $25,000, and by Count II they sought a declaratory judgment that title to certain land owned by them was not burdened with an easement.

Defendants offered no evidence, and the record does not indicate whether they had evidence to offer in the event their motions to dismiss had not been sustained. This is a court tried case, and pursuant to Civil Rule 73.01, V.A.M.R., we are to review the case upon both the law and the evidence as in suits of an equitable nature. In view of the record before us we cannot review the case on its merits. We can do no more than determine whether the trial court correctly entered judgment for defendants on both counts of the petition at the end of plaintiffs' evidence.

On May 12, 1961, plaintiffs (designated as 'purchaser') and Fischer & Frichtel, Inc. (sales agent for Garden Park Homes Corp., the owner of the land) entered into a 'Sales Contract' wherein it is stated that 'real property situated in the County of St. Louis, State of Missouri, being described as Lot #21, * * * in Bellecoeur Plat 3 Subdivision,' together with improvements thereon to be erected, 'this day is sold to purchaser.' It was provided in the contract that 'Purchaser authorizes Seller [presumably Garden Park Homes Corp., the owner, although its name appears nowhere in the agreement] to order title search and certificate, stake out and spot survey and pay out required loan commitment fees, if any, for purchaser's account and at purchaser's expense.' Title was to pass 'when sale is closed' under the 'usual closing practices of the Metropolitan St. Louis Real Estate Board,' which were set out at the bottom of the instrument and which provided, among other things, that 'Seller shall furnish a general warranty deed, subject to deed restrictions and zoning ordinances, easements, general taxes payable in current year, * * *.'

On July 29, 1961, with no actual notice to plaintiffs, Garden Park Homes Corp. conveyed to Clement and Violet McCarthy, owners of land adjacent to said Lot 21 on the west, 'an easement for a private roadway 50 feet wide,' which included the west fifty feet of Lot 21, and it was provided that the easement should 'serve exclusively the McCarthys, their heirs, * * *, and no electric or telephone poles shall be erected above ground on the westerly side of said easement [the west side of Lot 21] without the McCarthys' consent.' It was further provided that 'In addition McCarthys and assigns shall have the privilege of placing a row of trees along the easterly side of said easement [fifty feet inside of Lot 21] opposite McCarthys present easterly line.' Garden Park Homes Corp. also agreed, as part of the consideration, to surface and pave a portion of the easement area. This easement was recorded on August 9, 1961.

On September 8, 1961, Garden Park Homes Corp. conveyed to plaintiffs by general warranty deed 'Lot 21 of Bellecoeur Plat 3, according to the plat thereof recorded in Plat Book 99 page 5 of the St. Louis County Recorder's Office, subject to building line, easements, restrictions and conditions of record.'

The plat referred to in the deed was labeled 'Bellecoeur Plat 3,' and it was filed in the office of the Recorder of St. Louis County on April 27, 1961. On the plat there are provisions whereby Garden Park Homes Corp. 'dedicated to the County of St. Louis, Missouri for public utility use, sewer and drainage purposes' the 'easements shown on this plat, unless otherwise noted,' and whereby 'The street designated on this plat as Chasselle Lane' was 'dedicated to public use forever.' Lot 21 is shown to be 271 feet in length east and west, and 161 feet in width facing on Chasselle Lane. The plat contains a broken line across the west end of Lots 21, 22, 23 and part of Lot 20 with the identification of '15' W. Easem't.' Broken lines on the plat indicate a 15-foot easement, with 7 1/2 feet on each of Lots 21 and 22, extending eastward 120 feet from the west boundary of the two lots. The identification on the plat is '7 1/2' W. Easements.' The purpose of these easements is not indicated on the plat, but apparently they are for public utility sue, sewer and drainage purposes. On the plat there is another broken line extending across the west portion of Lots 21, 22, 23 and part of Lot 20, and it is identified as '50' wide Roadway Easement.' This fifty feet includes the fifteen foot easement across the west end of the lots.

On the same day the plat was filed, there was also recorded what was captioned 'Bellecoeur Plat #3 Restriction Indenture.' This was executed by Garden Park Homes Corp. by Edward F. Fischer, president. It was therein stated that Garden Park Homes Corp. was the owner of all the lots in Bellecoeur Plat #3, a subdivision, and it was then provided that the lots 'shall be subject to the easements, conditions, restrictions, reservations and limitations as hereinafter set forth, to-wit: * * *. (2) Easements: All easements as shown on said plat shall be and the same are hereby set aside and reserved for wires, poles, water and gas mains, sewers and other subdivision utilities, essentials and facilities.' By paragraph (7) a board of trustees was appointed to consist of three individuals, and it was stated that the board 'shall have the following rights and authority to wit: * * * (e) to exercise such control over the easements shown on the record plat except those easements which are now dedicated to public bodies and agencies as is necessary to maintain, supervise, and insure the proper use of said easements by the necessary public utilities, including the right (to themselves and to others to whom they may grant permission) to construct, operate and maintain on, under and over said easements and streets, sewers, pipes, wires, and other facilities and public utilities for service to the lots shown on said plat. * * * (h) Abandon an easement or portion thereof * * * when all the Trustees unanimously agree that there is no further use for same.' In paragraph (14) it was provided, after reciting various considerations, that 'Garden Park Homes Corp., hereby grants, bargains, and sells, conveys, and confirms unto the said Trustees as joint tenants and not as tenants in common, and to the successor and successors of them as Trustees of Bellecoeur Plat #3, the following: Easements in, over, upon, and across such portions of said land as may now or hereinafter be designated as streets, roads, driveways, and paths as follows: The rights, benefits and advantages of having ingress and egress from and to, over, along and across such streets, roads, driveways and paths, and appropriately beautifying and maintaining the same; * * *.'

Mr. Willis C. Jones, who with his wife were the purchasers of Lot 21 and are the plaintiffs in this action, testified that when he looked at Lot 21 with the salesman several weeks before he signed the 'Sales Contract' he saw a 10 or 12-foot graveled road across the rear of Lot 21, and he was told by the salesman that it was 'merely to provide egrees and so forth into the McCarthy home.' He was not shown the recorded plat, no one told him a fifty-foot easement for roadway existed, and he was never told about the easement which was executed on July 29, 1961. The certificate of title, dated September 11, 1961, issued in plaintiffs' names but which apparently was ordered and obtained by the 'Seller' pursuant to the provisions of the 'Sales Contract,' stated that 'the fee simple title' to 'Lot 21 of Bellecoeur, Plat 3' was vested in plaintiffs subject to a deed to trust, general taxes for 1961, 'building line, conditions, restrictions and rights and powers of trustees, according to the plat of said Subdivision * * * and [two] instruments' recorded in the designated books, one of which was the instrument filed at the same time as...