Newmark v. L & R Development Corp., 42849

• Decision Date: 21 April 1981
• Docket Number: No. 42849,42849
• Citation: 615 S.W.2d 118
• Court: Missouri Court of Appeals
• Parties: Philip R. NEWMARK et al., Respondents, v. L & R DEVELOPMENT CORP., Appellant.

Page 118

615 S.W.2d 118

Philip R. NEWMARK et al., Respondents, v. L & R DEVELOPMENT CORP., Appellant.

No. 42849.

Missouri Court of Appeals, Eastern District, Division Three.

April 21, 1981.

Merle L. Silverstein, Clayton, for appellant.

Patrick Gunn, Creve Coeur, for respondents.

REINHARD, Judge.

Defendant, L & R Development Corp. appeals from a judgment for the amount of a subdivision assessment.

The action was originally brought by plaintiffs, as trustees for Ladue Trails Subdivision, to recover subdivision assessments for the years 1976, 1977, and 1978 from defendant, owner of part of Lot 1 in Ladue Trails Subdivision Plat 2. The subdivision assessment amounted to $25 per year per lot and was provided for in a subdivision sub-indenture which is at the heart of the present controversy.

The subindenture at issue was entitled "Sub-Indenture of Deed Restrictions of Ladue Trails Subdivision Plat 1, a Section of the Village of Green Trails, County of St. Louis, Missouri" and was recorded on February 9, 1965. Plats 1 and 2 of Ladue Trails Subdivision were each recorded separately on the same day. Plat 2 contained a legend on its face stating that:

All lots in this subdivision of Ladue Trails Section of the Village of Green Trails Plat 2 are subject to conditions and restrictions contained in (Sub)- Indenture of Deed Restrictions of Ladue Trails section of the Village of Green Trails Plat 1 ...."

Other plats were subsequently recorded until there were a total of eight separately recorded plats made subject to the subdivision sub-indenture.

The sub-indenture itself set forth a means by which it could be amended or discontinued. Specifically, the sub-indenture stated that: "This Indenture of Trust and Restrictions and any part thereof may be altered, amended or discontinued by a written agreement signed by the then record owners of the fee simple title of two-thirds ( 2/3) of the lots in the Subdivision then included under the terms of this Indenture."

In July, 1974, the owners of all seven lots in Plat 2 executed an instrument by which the owners provided for a total discontinuance and termination as to Plat 2 of the sub-indenture. The agreement was submitted to the trustees for certification pursuant to the terms set forth in the sub-indenture, but the trustees refused to certify it. Thereupon the agreement was recorded without the trustees' certification.

The question presented before this court is whether the agreement to discontinue the sub-indenture executed by the lot owners of Plat 2 rather than two-thirds of the lot owners of all plats subject to the sub-indenture, was effective in terminating the sub-indenture with respect to Plat 2. The resolution of this issue depends upon an interpretation of the sub-indenture as to whether the sub-indenture applies to each plat as a separate subdivision or as part of one overall subdivision. ¹

The rules governing construction of contracts imposing restrictions on the use of realty are the same as those applicable to any covenant or contract, including the rule that the clear intention of the covenantor should govern. Pellegrini v. Fournie, 501 S.W.2d 564, 565 (Mo.App.1973). The intention of the parties is determined from the plain meaning of the language used, taken in the light of the entire context of the instrument. Tracy v. Klausmeyer, 305 S.W.2d 84, 89 (Mo.App.1957). However, restrictions upon the use of land must either be expressly stated or clearly inferable from the writing, and any ambiguity must be resolved in favor of free use of the property. Campbell v. Stout, 408 S.W.2d 585, 588-89 (Mo.App.1966).

In considering the context of the sub-indenture, we note that the intent and purpose of this instrument are clearly set forth in its preamble. Specifically, the following clauses in addition to the clauses of the sub-indenture already cited are significant.

WHEREAS, Party of the First Part now desires to proceed with the development of its property lying within said Village of Green Trails Subdivision ... by filing ... a plat entitled Ladue Trails Section of the Village of Green Trails Plat 1;

WHEREAS, Party of the First Part contemplates that the remainder of its properties lying within the Village of Green Trails shall also be subdivided and that plats thereof, designated Ladue Trails Subdivision Plat 2, Plat 3, etcetera, will be prepared and recorded in the St. Louis County Records pursuant to and in conformance with the aforesaid Order;

....

WHEREAS, it is the purpose and intention of this Sub-Indenture to preserve the remainder of said tract of land, not including the "Common Land," as a restricted neighborhood and to protect the same against certain uses by the adoption of a common neighborhood plan and scheme...