Van Deusen v. Ruth

• Decision Date: 21 February 1939
• Docket Number: 36072
• Citation: 125 S.W.2d 1,343 Mo. 1096
• Parties: Olga Van Deusen et al., Respondents, v. J. F. Ruth et al., Defendants, Leo J. Bussmann, Appellant
• Court: Missouri Supreme Court

125 S.W.2d 1

343 Mo. 1096

Olga Van Deusen et al., Respondents, v. J. F. Ruth et al., Defendants, Leo J. Bussmann, Appellant

No. 36072

Supreme Court of Missouri

February 21, 1939

Appeal from Circuit Court of City of St. Louis; Hon. Julius R Nolte, Judge.

Affirmed.

David E. Horn and Alfred L. Grattendick for appellant.

(1) While the law favors the free and untrammeled use of real property, proper building restrictions and other limitations on the use of property of a character which the law permits to be attached to land, in such a sense as to restrict the use of one parcel thereof in favor of another, will be enforced in a proper case in courts of equity upon equitable grounds in favor of or against the party designed to be benefited or burdened thereby. Scharer v. Pantler, 127 Mo.App. 433, 105 S.W. 668. (2) The words "modify" and "amend," as used in the trust agreement and indenture of restrictions in Davis Place admit of, permit and authorize the changes in restrictions set forth in the instrument entitled "Modification and Amendment of Restrictions in Davis Place," the validity of which is challenged by respondents. Funk and Wagnall's New Standard Dictionary; Wiley v. Corporation of Bluffton, 111 Ind. 152, 12 N.E. 168; Diamond v Williamsburgh Ins. Co., 4 Daly, 500; In re Pennsylvania Tel. Co., 2 Chester Co. Rep. 131; Fitzpatrick v. Costigan, 19 S.W.2d 983. (3) Appellant was qualified to sign the instrument entitled "Modification and Amendment of Restrictions in Davis Place" because: (a) He was not a "successor" to the Eighty Hundred Realty Company. Thompson v. North Texas Natl. Bank, 37 S.W.2d 735; Mississippi Valley Trust Co. v. Southern Trust Co., 261 F. 767; Hanna v. Florence Iron Co., 222 N.Y. 290, 118 N.E. 629. (b) He was not "promoting" the subdivision. Caskie v. State Corp. Comm., 145 Va. 459. (c) He was a bona fide purchaser of the property to which he had title. Definition of bona fide purchaser in: 8 C. J., p. 1146; 41 C. J., sec. 474, p. 532; Bradley v. Luce, 99 Ill. 234; 2 Jones on Mortgages, sec. 877, p. 202. (4) The provisions of the trust agreement and indenture of restrictions in Davis Place make no provision for or requirement of the listing or describing of the property owned on the instrument of modification or change by each owner who joins in a change in restrictions. (5) Therefore, evidence establishing ownership of property by the signatory parties to the instrument entitled "Modification and Amendment of Restrictions in Davis Place" (in those instances challenged by respondents) under whose signatures upon said instrument there was no designation or description of property owned by them was admissible and properly received. (6) Incorrect designations of lot and block numbers under the names of certain signatory parties to the instrument entitled "Modification and Amendment of Restrictions in Davis Place," pointed out in respondent's evidence, were clerical errors, being in nature latent ambiguities, and parol evidence was admissible to establish what property was actually owned by those signatory parties. Moore v. Wingate, 53 Mo. 398; 2 C. J., p. 1314; State ex rel. Morrison Ins. Co. v. Trimble, 301 Mo. 146, 256 S.W. 171.

Jacob M. Lashly, Walter Wehrle and John O. Hichew for respondents.

(1) Rules of construction applicable to instruments alleged to have authorized the imposition of building restrictions. (a) The "Trust Agreement and Indenture of Restrictions in Davis Place," executed on June 5, 1925, and the so-called "Modification and Amendment of Restrictions in Davis Place," recorded on May 21, 1936, purporting to restrict the use of certain property described therein, are of the type which is regarded unfavorably by the law and generally as contrary to public policy, and so must be strictly construed, and in case of any doubt or ambiguity as to the meaning of such an instrument or any part thereof, or as to whether authority is conferred to create new and additional restrictions against the use of the property involved, such doubt or ambiguity should be resolved against their imposition and in favor of the free and untrammeled use of the land. Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 607; Mathews Real Estate Co. v. Natl. Ptg. & Eng. Co., 330 Mo. 190, 48 S.W.2d 913; Mo. Province Ed. Institute v. Schlecht, 322 Mo. 621, 15 S.W.2d 773; Breadon v. Paugh, 333 Mo. 127, 48 S.W.2d 853; Bolin v. Tyrol Inv. Co., 273 Mo. 257, 200 S.W. 1059; Palfrey v. Killinan, 224 Mo.App. 325, 27 S.W.2d 463; Charlot v. Regents Merc. Corp., 251 S.W. 423; Hutchinson v. Ulrich, 145 Ill. 342, 34 N.E. 556; Schoonmaker v. Heckscher, 157 N.Y.S. 77, 171 A.D. 148. (b) Where particular words, phrases, clauses or the document itself which is drawn in question may be susceptible of two constructions, one of which is equitable and fair between the parties and also conforms to public policy, and the other of which would result in inequities and would contravene public policy, the former meaning or interpretation will be adopted. Wiggins Ferry Co. v. C. & A. Ry. Co., 128 Mo. 224, 27 S.W. 568; Natl. Bank of Commerce v. Flanagan Mills & Elev. Co., 268 Mo. 547, 188 S.W. 117; American Hardwood Lbr. Co. v. Dent, 151 Mo.App. 614, 132 S.W. 321; Counts v. Medley, 163 Mo.App. 546, 146 S.W. 468; Miller v. Bowen Coal & Mining Co., 40 S.W.2d 490; Aldrich v. N. Y. Life Ins. Co., 235 N.Y. 214, 139 N.E. 245; Wilson & English Const. Co. v. N. Y. Cent. Ry. Co., 269 N.Y.S. 875, 240 A.D. 479; Seward v. Amer. Hardware Co., 161 Va. 610, 171 S.E. 650; La Porte Corporation v. Mayor & City Council of Baltimore, 13 F.Supp. 799. (2) The trial court did not err in making and entering a decree canceling the written instrument hereinbefore referred to as "Modification and Amendment of Restrictions in Davis Place," filed of record on May 21, 1936, and decreeing that said written instrument is null and void and of no legal effect, and removing the cloud of same from title of plaintiffs-respondents and others similarly situated to the real estate involved. Couch v. Southern Methodist University, 10 S.W.2d 973; Louisiana Western Railroad Co. v. Crossman Heirs, 111 La. 611, 35 So. 784; State v. Tucker, 36 Ore. 291, 61 P. 894; Taylor v. Hamton, 4 McCord, 96, 17 Am. Dec. 711; Robinson v. Lane, 19 Ga. 337; Lemons v. State, 155 Ark. 59, 244 S.W. 1; State v. Dunn, 66 Kan. 483, 71 P. 811; French's Estate, 265 N.Y.S. 902; United States v. Felder, 13 F.2d 527; 25 C. J., p. 230. Because appellant, Leo J. Bussman, was not an owner qualified to join in the aforementioned "Modification and Amendment of Restrictions in Davis Place," and without appellant Bussmann the owners of the requisite aggregate frontage, namely, 75 per cent of the whole frontage in Davis Place did not join in the instrument as required by paragraph 14 of said "Trust Agreement and Indenture of Restrictions in Davis Place" as a condition precedent to the imposition of restrictions affecting the use of respondents' real estate; not qualified for the reason that appellant Bussmann was (a) an assign or successor of the Eighty Hundred Realty Company engaged in promoting the subdivision in question, and (b) an assign of said company who was and is not a bona fide purchaser of lots in said subdivision within the meaning of the language employed in said paragraph 14, which explicitly disqualifies any owner of frontage in said subdivision from joining in such an instrument, who is an assign or successor of said company promoting said subdivision or (c) an assign of said company who was and is not a bona fide purchaser of lots in said subdivision. Brown v. Agricultural Assn., 34 Minn. 505, 26 N.W. 907; Standard v. Marboe, 159 Minn. 119, 198 N.W. 127; Brown v. Smith, 13 N.D. 580, 102 N.W. 171; West Shore Railroad v. Wenner, 70 N. J. L. 233, 57 A. 408; Erichsen v. Tapert, 172 Mich. 457, 138 N.W. 330; Ferrell v. Deverick, 85 West Va. 1, 100 S.E. 850; Southworth v. Perring, 71 Kan. 755, 81 P. 481; Thompson v. North Texas, 37 S.W.2d 735; United States v. Commonwealth Title Ins. Co., 193 U.S. 651, 48 L.Ed. 830.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

This, a suit in equity, was filed by plaintiffs, respondents here, in the Circuit Court of St. Louis County, seeking the cancellation of an instrument designated as a "Modification and Amendment of Restrictions in Davis Place." The trial court granted plaintiff the relief prayed for and the defendant, Leo J. Bussmann, appealed.

Davis Place, a real estate subdivision, is located in Clayton, St. Louis County, Missouri. It is bounded on the north by the Chicago, Rock Island & Pacific Railroad tracks, on the south by Clayton Road, on the west by North and South Road and on the east by Hanley Road and Polo Drive. Davis Place was laid out and platted by the Eighty Hundred Realty Company. Restrictions were placed on the property prohibiting the building of apartment houses, stores, flats or other commercial buildings except on lots fronting on Clayton and North and South Roads. Lots fronting on Hanley Road were available for apartments. The agreement providing for the restrictions, dated June 5, 1925, contained the following:

"All or any of the foregoing provisions or restrictions may be modified, amended, released or extinguished at any time after ten (10) years by written instrument executed, acknowledged and recorded as required by law for instruments affecting real estate, by the owners of seventy-five per cent (75%) of the total number of front feet embraced in this indenture and for this purpose the frontage shall be determined as set forth in Paragraph Second of this instrument, provided, however, that the Company, its successors or assigns promoting this subdivision, or its or their assigns who shall not be bona fide purchasers of lots...