Weiss v. Fayant
| Decision Date | 23 September 1980 |
| Docket Number | No. 11634.,11634. |
| Parties | HOWARD WEISS, Plaintiff-Respondent, v. John E. FAYANT and Kathleen M. Fayant, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
John L. Walker, Phillips, McElyea, Walker & Carpenter Corp., Camdenton, for plaintiff-respondent.
William Icenogle, Icenogle, Casteel, Drover & Icenogle, Camdenton, for defendants-appellants.
Plaintiff sought and received a mandatory injunction prohibiting defendants from maintaining a mobile home on real property defendants owned. Plaintiff's request for the injunction was based on a restrictive covenant prohibiting a "house trailer" or "mobile home". Defendants contend that the restrictions do not apply to their land, but if they do apply, that equitable relief should be denied plaintiff because plaintiff has "unclean hands". Defendants claim that plaintiff represented to defendants' predecessors in title that there were no restrictions on the use of the land and that defendants relied on that representation at the time they purchased the land.
Plaintiff's son, on June 28, 1974, granted an option to defendants' predecessors to purchase a portion of a tract of land that he had record title to, bordering on the Lake of the Ozarks. On the tract optioned was the Hickory Grove Resort, consisting of a grocery and liquor store, a boat dock, which sold gasoline, and 13 guest units. The restrictions were recorded August 24, 1974. Plaintiff's son conveyed all of the tract to plaintiff on May 28, 1976. Following the exercise of the option, plaintiff conveyed the resort portion to defendants' predecessors on July 26, 1976. Defendants received title to the premises on October 28, 1977. Since the restrictions have been filed, other persons, who are not parties to this action, have bought portions of the remaining tract from plaintiff and constructed houses on their portions. Plaintiff still owns a part of the property described in the restrictions. There were no mobile homes on the property described in the restrictions until defendant moved a mobile home onto their property. They put it there about three months after they purchased the property. Shortly after they purchased the property, and before they moved the mobile home on it, defendants were shown a list of restrictions by plaintiff's son. They proceeded with the mobile home because they "thought that these restrictions didn't apply" to their property.
Defendants contend that the restrictions do not apply to their property because such restrictions "are to be construed strictly against the one seeking to enforce them" and defendants' property prior to the filing of the restrictions was "devoted to commercial purposes, while the restrictions themselves, if strictly construed, are restrictions relating to residential and not commercial property". Defendants do not now claim that the restrictions are invalid as to their property because they were executed and recorded after the option was granted to defendants' predecessors. This was one of their contentions before the trial court and was ruled against them. See Kuhs v. Kawelaske, 516 S.W.2d 309, 311 (Mo.App. 1974).
It is true that restrictive covenants will be strictly construed and not extended by implication and any reasonable doubt as to their meaning will be resolved in favor of free use of the land. Brasher v. Grove, 551 S.W.2d 302, 303 (Mo.App. 1977). These principles, however, should never be applied in such a way as to defeat the plain purpose of the restriction. Id. We construe restrictions by considering the language used in the entire instrument, not just one clause. Pellegrini v. Fournie, 501 S.W.2d 564, 565 (Mo.App. 1973); Tracy v. Klausmeyer, 305 S.W.2d 84, 89 (Mo.App. 1957).
Defendants ask us, in determining if the restrictive covenants apply, to consider that the resort was being operated at the time the restrictions were filed. Where the meaning of restrictions is in doubt the surrounding circumstances may be considered to determine intention. Wilson v. Owen, 261 S.W.2d 19, 23 (Mo.1953). However, where a restriction is unambiguous "it is neither necessary nor proper to inquire into the surrounding circumstances for aid in its construction." Hickey v. Greengard, 176 S.W.2d 661, 663 (Mo.App. 1944). Also see 26 C.J.S. Deeds § 163a, pp. 1104-1105; 20 Am.Jur.2d Covenants, § 186, p. 754.
Our examination of the "declaration of restrictions" convinces us that they were intended to apply to all property described therein, including that now owned by defendants, whether or not we consider the use of defendants' land at the time the restrictions were recorded. The...
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