Steve Vogli & Co. v. Lane
| Decision Date | 12 September 1966 |
| Docket Number | No. 51793,No. 2,51793,2 |
| Citation | 405 S.W.2d 885 |
| Court | Missouri Supreme Court |
| Parties | STEVE VOGLI & CO., a corporation, Appellant, v. John B. LANE et al., Defendants, Walter L. Saloga et al., Respondents |
Kusnetzky & Partin, William C. Partin, Kansas City, for appellant.
Raymond, West & Cochrane, and Carrol C. Kennett, Kansas City, for respondents.
STOCKARD, Commissioner.
Plaintiff has appealed from an adverse judgment entered in his suit to determine the validity of a purported amendment to restrictions on its land. The stipulated difference in value of the land brought about by the continuance or modification of the restrictions exceeds our minimum jurisdictional amount. See Eilers v. Alewel, Mo., 393 S.W.2d 584.
Broadview Heights consists of two separate but adjoining subdivisions of land in Kansas City, Missouri, containing a total of 35 lots. Plaintiff is the owner of lots numbered 75 through 80. The other 29, through a division of some lots, comprise 31 homesites, each in a separate ownership. All the lots were subject to the terms of a Declaration of Restrictions dated and recorded on February 13, 1950, which among other things limited their use to single family residence purposes. Plaintiff's six lots are the only ones in the Broadview Heights not improved with single family residences. Paragraph 16 of the Declaration of Restrictions contains the following provisions respecting the term, extension and release of such restrictions:
'All of the restrictions and covenants herein set forth shall continue and be binding upon the undersigned and upon his heirs and assigns for a period of twenty-five (25) years from the date that this instrument is filed for record in the office of the County Recorder of Jackson County, Missouri, and shall automatically be extended thereafter for successive periods of twenty-five (25) years, provided, however, that the owners of the legal title to the aforesaid lands having more than fifty (50) percent of the front footage of said lands may release all of the lands hereby restricted from any one or more of said restrictions and covenants, and may release any part of said land from any restrictions and covenants created by deed from the undersigned at the end of the first twenty-five (25) year period, or at the end of any successive twenty-five (25) year period thereafter by executing and acknowledging an appropriate agreement or agreements in writing for such purpose and filing the same for record in the manner then required for the recording of land instruments, at least five (5) years prior to the expiration of the first twenty-five (25) year period, or at least five (5) years before the expiration of any twenty-five (25) year period thereafter; and further provided that the owners of the legal title of the lands having more than seventy-five (75) percent of the front footage of the land described herein may after fifteen (15) years from the date of this instrument, by executing and acknowledging an appropriate agreement and filing the same for record, as outlined above, release any one or more of the restrictions or covenants as above mentioned.'
On March 24, 1964, which was before plaintiff acquired title to its six lots, all the owners of all the lots in Broadview Heights affected by the Declaration of Restrictions, executed and recorded an instrument entitled 'Amendment of Restrictions' in which it was stated that the restrictions contained in the Declaration of Restrictions 'shall be and are hereby amended' to provide seven separate restrictions applicable only to Lots 75 through 80, as follows:
Plaintiff acquired its six lots on October 7, 1964, and desired to develop the land for garden type apartments. Thereafter, plaintiff and the owners of 24 other lots executed an instrument entitled 'Modification and Amendment to Restrictions, which by its terms was to become effective February 15, 1965, more than fifteen years after the date of the Declaration of Restrictions. This instrument recited that the undersigned 'being all of the owners of the legal title to more than 75 per cent of the front footage of lots 46 to 80, both inclusive, * * * desire that the Declaration of Restrictions heretofore imposed upon all the aforesaid lots dated February 13, 1950, * * * and the amendment to said Declaration of Restrictions dated March 24, 1964, * * * be amended, changed and deleted as hereinafter set out, insofar as said restrictions and the amendment thereto affect Lots 75 to 80, both inclusive, * * *.' It was then provided that the Declaration of Restrictions and the Amendment of Restrictions 'are hereby amended, deleted and changed as follows, to wit:
Subsequently, a petition was circulated among the owners of the lots in the subdivisions and signatures were obtained to a 'Petition' wherein it was stated as follows: 'KNOW ALL MEN BY THESE PRESENTS: That whereas the undersigned being the owners of the legal title to certain Lots in Broadview Heights, a subdivision in Kansas City, Jackson County, Missouri, after giving consideration to the proposal as presented by Mr. Steve Vogli, representing Steve Vogli & Company, wherein our area restrictions as filed of record at Jackson County, Missouri, be amended to permit the building of apartments on Lots 75 to 80, both inclusive; do hereby disapprove said proposal.'
Plaintiff filed this suit seeking a declaratory judgment that the 'Modification and Amendment to Restrictions' was a valid agreement to modify the original Declaration of Restrictions, and that the modification became effective on February 15, 1965. The named defendants were those lot owners who signed both the proposed modification and the petition of disapproval. All the named defendants defaulted except the owners of one lot who answered and challenged the validity of the Modification and Amendment to Restrictions. The trial court found that by the 'express terms of the original restriction agreement 'any one or more of the restrictions' applicable to all the lots could be released by the requisite number of property owners, but there was no provision authorizing the partial release of a restriction for only a part of the area,' and that 'a partial release of the restrictions as to a few lots is not authorized by the original restrictive agreement and it is therefore void.' It was then ordered, adjudged and decreed that 'the Declaration of Restrictions of February 13, 1950, remains in force and effect in accordance with all its terms and provisions.'
On this appeal plaintiff-appellant asserts that both the Amendment of Restrictions executed by all the owners of all lots, and the Modification and Amendment to Restrictions executed by the owners of 75 percent of all the lots are valid. No brief has been filed in this court by or on behalf of the defendants, and while a respondent is not required to file a brief, the practive of not...
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...X, Section 3 of the "Declaration," and perhaps unanimity could achieve the same result before that time, see Steve Vogli & Co. v. Lane, 405 S.W.2d 885, 888 (Mo.Sup.Ct.1966). Moreover, the lien and personal obligation mentioned above run in favor of the homeowners' association, not the towns......
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