Kerrick v. Schoenberg
| Decision Date | 09 November 1959 |
| Docket Number | No. 2,No. 47301,47301,2 |
| Citation | 328 S.W.2d 595 |
| Parties | R. R. KERRICK, Appellant, v. V. A. SCHOENBERG, C. E. Mosley, and M. F. Stroud, Respondents |
| Court | Missouri Supreme Court |
Ziercher, Tzinberg, Human & Michenfelder, Herbert W. Ziercher, Clayton, for appellant.
Herman M. Katcher, William R. Gartenberg, Walter S. Berkman, St. Louis, for respondents.
SAMUEL A. DEW, Special Commissioner.
Plaintiff brought this suit in equity in two counts, both based upon his contract to purchase a tract of land. In Count I he sought specific performance, and also asked damages for defendants' failure to include in their warranty deed to the property purchased, two provisions of the contract affecting the tract purchased and defendants' adjoining land. In Count II he asked for an adjudication of the legal and equitable title to the real estate involved, prayed for specific performance of the contract, and for damages. Trial was had on the theory that defendants' pleading consisted of general denials. The court, disregarding the separation of the petition into counts, entered a decree more fully stated hereinafter in which the court found that the equitable title to the real estate is vested in defendant Mosley; that the legal title to the parcel sold and to the remaining land adjoining is vested, respectively, in defendants Schoenberg and Stroud, for the defendant Mosley as his agents or straw parties; that the plaintiff had tendered the full purchase price agreed upon, which the court ordered to be deposited with the registry of the court; ordered defendants to cause a general warranty deed to be executed and so deposited, conveying to the plaintiff the parcel purchased, and to include in said deed the two certain provisions of the contract in controversy as demanded by the plaintiff. The court further ruled that such two provisions, however, while valid personal obligations of the defendants, were not restrictive covenants that would run with the adjoining land of the defendants, nor were they charges upon said land. The court further denied the plaintiff's plea for damages. The decree also contained provisions touching the performance or nonperformance of the judgment. From the foregoing decree the plaintiff has appealed.
The jurisdiction is vested in this court under the Constitution of Missouri, Art. V. Sec. 3, V.A.M.S., because the title to real estate is directly involved. Kauflin v. Turek, Mo., 277 S.W.2d 540, 542; Dowd v. Lake Sites, Inc., 365 Mo. 83, 276 S.W.2d 108; Drake v. Hicks, Mo., 249 S.W.2d 358, 360.
The pertinent facts are not disputed. In the fall of 1956, plaintiff, owner and operator of several gasoline filling stations in several midwestern states, selected a site for such a station about 300' by 300' fronting on Highway 67, a part of a tract of over 600 acres owned by defendant Mosley, lying on both sides of that highway, all in St. Charles County, Missouri. The site selected was much below the highway. It would require about 100,000 cubic yards of dirt to fill the site to the level of the highway. Plaintiff contacted defendant Mosley, to whom he pxplained his desire to purchase the site and the purpose for which he wished to use it, and discussed the necessity for filling the tract to the level of the highway. Thereafter a written contract was entered into by and between the plaintiff and defendant Schoenberg, who is conceded to hold the legal title to the property for the defendant mosley as his agent or straw party.
The contract acknowledges receipt of $2,500 from the plaintiff as an earnest deposit on the total price of $25,000 cash, describes the property by location and measurement and by reference to a survey and, among other things, recites: 'The grantor in this sale also includes sufficient dirt from adjoining land to make necessary fill on the above described 300' by 300'.' It further provides that the deal depends upon plaintiff's ability to obtain a license necessary to erect a gasoline filling station. The terms require the balance of the $25,000 to be paid in cash upon the closing of the deal.
The contract also provides: 'The seller agrees not to sell any of the present holdings of land in this area for other gasoline filling stations.' There is no contention that this has reference to any other land than that of which the parcel sold was a part.
The contract called for a perfect title to be conveyed by a warranty deed 'free from liens and encumbrances except as noted above,' and except restrictions of record and a certain tax adjustment. Following other provisions, not here involved, the contract provided for forfeiture of the earnest money if the plaintiff failed to perform. The contract was prepared by an officer of the title company in which the deed was deposited by the defendant Schoenberg.
When the title was cleared of imperfections of record, defendants Schoenberg and Mosley notified plaintiff that a warranty deed to the tract purchased had been executed and deposited with the Guaranty Land Title Company at Clayton, Missouri, and was ready for delivery upon payment there of the balance of the purchase price. Plaintiff appeared the next day at the Guaranty Company's office and tendered the remaining sum of $22,500 of the agreed price. Upon examination of the warranty deed, however, plaintiff objected to it and refused to accept it because it wholly omitted the two provisions of the contract above quoted regarding the fill, and the agreement not to sell other sites in the adjoining property for other gasoline filling stations. The officer of the Guaranty Company had been instructed by defendant Mosley not to include those provisions in the deed. Plaintiff, as stated, refused to accept the deed without the inclusion of such provisions.
Plaintiff's attorney prepared and tendered a substitute contract containing the two provisions in question in greater detail as a charge and a burden on the defendants' remaining adjoining land as restrictive covenants running with that land. Defendants refused to enter into any agreement other than the one already made. They took the position that such provisions were mere personal obligations of the seller for which the existing contract was sufficient; and had no place in a warranty deed and could not be a charge on the remaining tract of over 600 acres.
On February 26, 1957, defendant Schoenberg deeded all of the land, other than the parcel sold to plaintiff, to defendant M. F. Stroud who, it is conceded, is a sister of defendant Mosley and holds the legal title as his agent or as a straw party.
The court's first decree gave to the plaintiff practically all of the relief prayed for, including the incorporation in the deed of the two provisions in controversy, and a ruling that they constituted a charge and an encumbrance on the remaining lands of the defendants and ran with the title thereto. Defendants filed their motion for a new trial and later withdrew the same when the court set aside its decree of its own motion and entered a new and final decree.
As indicated, the final decree finds that plaintiff had made due tender of the purchase price; that he had demanded a deed containing the two provisions mentioned, which defendant Schoenberg refused to execute and deliver; that defendant Schoenberg holds the legal title to the tract contracted to be sold, and holds the same for the defendant Mosley; that Schoenberg conveyed to defendant M. F. Stroud the legal title to all of the other property described in plaintiff's petition, who holds the same for the defendant Mosley.
The final decree further provides that the provision of the contract for dirt from adjoining land and the agreement not to sell any property in the area for purposes of another filling station are valid and personal agreements and obligations of the defendants, but are not restrictive covenants 'which run forever with the other land owned by the defendants in this area', and constitute no burden, charge, encumbrance or restriction thereon in any way, on account of such personal obligations.
The final decree also ordered the defendants to cause to be executed a general warranty deed to the plaintiff for the land to be purchased, and to include in such deed the following two controverted provisions of the contract: 'The sellers herein agree not to sell any of the present holdings of land in this area for other gasoline filling stations' and--'The grantor in this deed also includes sufficient dirt from adjoining land to make necessary fill on the above described 300 feet by 300 feet.' The decree required the deed to be deposited by defendants in the registry of the court within ten days after the decree became final, such deed to be delivered to the plaintiff and the sum deposited to be paid to defendants; that if the plaintiff did not deposit the said sum as required, the deed to be returned to the defendants; that if defendants failed to so deposit such deed a certified copy of the decree filed for record in the office of the recorder of deeds should stand in the place and stead of a general warranty deed and the fee simple title shall thereupon be vested in the plaintiff. The court denied the damages prayed for in the petition. The costs were assessed against the defendants.
Plaintiff's motion for new trial or for modification of the decree was overruled and this appeal ensued.
Plaintiff does not pursue the issue of damages sued for and denied by the court. He first contends that the court erred in finding that the provision of the contract that the grantor 'includes' sufficient dirt 'from the adjoining land' to make necessary fill of the tract purchased is not a covenant running with the defendants' adjoining land, and in holding such provision is not a charge or an encumbrance thereon in any way. Plaintiff asserts that such provision is a covenant running with such adjoining land and is a charge thereon because it met all of the requirements of the...
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