Stevens v. Annex Realty Co.

• Decision Date: 17 March 1903
• Parties: STEVENS et al. v. ANNEX REALTY CO. et al.
• Court: Missouri Supreme Court

73 S.W. 505

173 Mo. 511

STEVENS et al. v. ANNEX REALTY CO. et al.

Supreme Court of Missouri, Division No. 2.

March 17, 1903.

DEEDS—COVENANTS—RUNNING WITH LAND—PURCHASERS—NOTICE—PERPETUITIES.

1. The owners of land laid the same out in private streets, parks, and building lots, and conveyed the streets and parks to trustees with authority to improve them and pay all taxes, and covenanted for themselves and those who might hold the lots through them that the lots should be forever chargeable with all assessments made by the trustees for the payment of taxes and improvements. Held. that the covenant ran with the land.

2. Though the covenant did not run with the land, a purchaser with notice was bound to observe it.

3. Subsequent purchasers claiming through a recorded deed with covenants are chargeable with notice of them, and occupy the same position as to them as the original grantee did.

4. The owners of a tract of land laid out the same in building lots, parks, and streets, and conveyed the streets and parks to trustees, who were authorized to make improvements and pay all taxes, and for such purposes to make assessments against the lots. Provisions were made for filling vacancies among the trustees in case of death, etc. Held, that the conveyance to the trustees did not violate the rule against perpetuities, since, while the beneficial interests in the streets could never be alienated independently of the lots, there were persons in being who could by their concurrence convey an absolute fee to the streets, etc.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Suit by A. T. Stevens and others against the Annex Realty Company and others. From a decree for complainants, defendants appeal. Affirmed.

This is an equitable proceeding, the purpose of which is to enforce against defendant, the owner of a lot, an assessment made upon the lot, in pursuance to the covenant of a deed through which it claims title, and to declare the assessment a lien upon the lot.

The case was submitted to the court upon an agreed statement of facts, which shows that on April 10, 1885, Angus G. Kennedy and Annie E. Kennedy, his wife, and Willis H. Plunkett and his wife, made a conveyance to Fry, Tebbetts, Croy, Doan, and Pye, as hereinafter stated. The deed of conveyance recites that whereas, the grantors are the owners of certain tracts of land, containing 45½ acres; and whereas, in order to improve and dispose of the land, they have determined to lay out certain private streets and two parks, and dedicate said streets and parks to the use of the persons who may purchase and improve the lots in said subdivision, and have caused the remainder to be laid out into 58 building lots; and whereas, they desire to secure to persons purchasing the lots the enjoyment of the parks and private streets upon the terms and conditions as set out in the deed; now, in consideration of $5, they convey the two parks designated as "Clifton Park" and "Frisco Park," and the private streets and avenues designated as "Simpson Avenue" and "Bowman Avenue," to the said Fry, Tebbetts, et al., in trust, to improve said avenues and parks, giving them power for that purpose to improve and ornament the parks, and to keep the roads and parks in good order and repair, empowering them to pay all taxes, public or local. The deed provides for the enjoyment of the parks by the owners of the lots, under such rules and regulations as the legal owners of a majority in number of the lots may from time to time establish. It also designates the parties of the second part, to wit, Fry, Tebbetts, et al., as trustees, and provides for the filling of vacancies in case of the death or resignation of any of the trustees, and fixes the terms for which the first trustees shall hold office; provides for the election of a president and other officers, and for the holding of an annual meeting on the first Monday in March of each year. It also provides that the trustees or their successors shall have power to collect and recover, from any party liable to pay the same, all such annual charges and assessments as are or shall be charged, levied, or assessed on said lots, or any part thereof, by law, or pursuant to the terms of the deed, or any part, and to enforce the conditions, covenants, regulations, and restrictions created by the deed, they having for their object the protection or improvement of said lots, roadways, and parks. The deed contains further provisions, substantially as follows: That the said parties of the first part, for themselves, their heirs, executors, and administrators, and also for and on behalf of all persons who may hereafter derive title or otherwise hold through them any of the building lots aforesaid, or any part of the said lots, agree to and with the said parties of the second part, and their survivor or survivors, and their successor or successors in said trust, as follows: First, that each of said building lots in said subdivision, and also the person or persons from time to time owning the same, shall forever hereafter stand and remain bound and chargeable to said board of trustees for the time being, and to such treasurer, for the payment of all levies, charges, or assessments as shall be made by said board of trustees for the purpose of paying taxes, general, special, or local, so incurred, and for the improvement of the streets and parks; and they further agree that all said assessments shall be a first lien on said respective lots, and each of them, and every part thereof; and, in default of payment at the time specified, said board of trustees may institute suits and prosecute such proceedings in law or equity as may be necessary to enforce said lien and the payment thereof, with interest from the time it became due, with $20 in each case as liquidated damages. It further sets forth, substantially, that those covenants, conditions, and restrictions shall attach to and run with each and every building lot, and all titles and estates in the same, and shall be binding on each and every lot, and each and every owner of the same, forever. And it covenants that neither of the parties hereto, nor their heirs or assigns, or any future owner, shall or will convey or demise any or either of said lots, or any part thereof, except and being subject to the covenants, conditions, and restrictions contained in the deed; and, whether or not it is so expressed in the deed or other conveyance of said premises, the same shall be absolutely subject to said covenants, conditions, and restrictions, which shall run with and be appurtenant to said land and every part thereof. There is a further provision that the covenants, restrictions, and so forth, shall not be enforced personally against any of the parties, their heirs or assigns, unless he or they, while owners, shall have violated or failed to perform such covenants, etc. The deed provides that the trustees shall make the assessments for the purpose of paying the taxes upon the land held by them in trust, and for the improvement of same, and provides for the manner of making the assessments. This deed was duly recorded on April 28, 1885.

On the 11th day of April, 1885, Angus G. Kennedy and wife conveyed the lots in controversy to M. B. O'Reilly, which deed was duly recorded. This deed contains a stipulation that the lots are conveyed by the...