Wurdack, S. Gott v. Fidelity Deposit Co.
See generally, Stover v. Patrick, S. This court perceives the decree and judgment in favor of the Association and against the Schmidts under Count One of the Association's petition, and the judgment in favor of the Schmidts and against the Association under Count Two of the Association's petition, as judgments between the same parties on different causes of action. As no appeal was taken from the decree and judgment in favor of the Association and against the Schmidts under Count One of the Association's petition, as the same has long since become final, and as the fact "actually decided and necessarily determined" in rendering the decree and judgment in favor of the Association and against the Schmidts under Count One of the Association's petition was that Stanton had assigned the right to enforce the Restrictions to the Association, the fact of said assignment was and is binding upon the Schmidts as to Count Two of the Association's petition by virtue of application of the doctrine of estoppel by verdict and the Schmidts will not presently be heard to take an otherwise inconsistent position during the course of the present appeal.
Attention now focuses on the one remaining issue left on appeal — does the Association by virtue of assignment of the right to enforce said Restrictions succeed to the power of approval and fall within the purview of the term "company" as employed in Restriction VII? Exhibit B, captioned "Sherwood Estates Homes Association declaration", filed and recorded of record in the office of the Recorder of Deeds, Clay County, Missouri, which the trial court specifically referred to as the basis for its "Conclusion of Law" that Stanton had "assigned the right to enforce the restrictions" to the Association, contains a preamble expressly declaring, inter alia, that Stanton was desirous of creating and maintaining "Sherwood Estates" as a "residence neighborhood possessing features of more than ordinary value to a residence community".
To achieve this end Stanton assigned to the Association the right to enforce all restrictions as evidenced by the following provision contained in the "Sherwood Estates Homes Association Declaration": "The Association shall have the following powers and duties FIRST: To enforce, either in its own name or in the name of any owner within the district, any or all building restrictions which may have been heretofore, or may hereafter be imposed upon any of the land in said district, Although restrictive covenants "are not favorites of the law", are to "be strictly construed" when "their meaning is properly open to construction", and will not be "extended by implication", the intention of the parties "may be gathered not only from the specific clause under scrutiny but in light of all other provisions" and the principle that restrictions as to the use of real property "should be strictly construed" and "doubts resolved in favor" of its free use "should never be applied in such a way as to defeat the plain purpose of the restriction".
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Grover, S. Harking back to the preamble contained in the "Sherwood Estates Homes Association Declaration", the following decisional language in Skinner v. Henderson, S. The vortex of the single remaining issue on appeal has now been reached — did Stanton's assignment of the right to enforce the Restriction to the Association substitute the Association in the place of Stanton as the "company" for the purpose of granting or denying approval as to plans or specifications as prescribed by Restriction VII?
Recognition of the obvious purpose of the Restrictions and the avowed intent expressed in the preamble of the "Sherwood Estates Homes Association Declaration" to retain Sherwood Estates' status as a "residence neighborhood possessing features of more than ordinary value to a residence community", gives impetus to the belief that the trial court obviously excluded consideration of both in determining the intent coursing through the "Sherwood Estates Homes Association Declaration" as to the scope and breadth of Stanton's assignment of the power to enforce Restriction VII to the Association.
The power to enforce Restriction VII is a legally sterile power if it does not include the power to grant or withhold approval of plans and specifications falling within its purview.
Out of State Deed Preparation
Perhaps no other single restriction is quite so adaptable for perpetuating Sherwood Estates' status as a "residence neighborhood possessing features of more than ordinary value to a residence community. Stanton was a subdeveloper and builder, and once its role was completed in Sherwood Estates it had an overriding interest in transferring all powers and duties attendant to the Restrictions, and authority to enforce them, to the Association whose membership was comprised of the homeowners in Sherwood Estates. In view of the homeowners' natural community of interest it is impossible to imagine a more suitable repository for such powers, duties and authority.
Manifestation of Stanton's intent to substitute the Association in its place for the purpose of assuming and performing all powers and duties associated with the Restrictions, including but not limited to Restriction VII, and the authority to enforce them, permeates the "Sherwood Estates Homes Association Declaration". As it turned out, Stanton's persistent desire to unburden itself of any continuing responsibility concerning Sherwood Estates was indeed fortunate as Stanton's corporate charter was subsequently forfeited in Case authority sustaining an assignment of the power to approve construction plans and specifications by a corporate subdivider without reservation of any right to do so is found in Shields v.
Welshire Development Co. In Shields, the assignee was a builder who purchased all of the remaining lots in a subdivision. Assignment of the power of approval in the case at hand rests in a far more favorable atmosphere as the assignee is a corporate composite of all the homeowners in Sherwood Estates. The Shields case, in sustaining an assignment of the power of approval, had this to say A.
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Thus, approval action by different agents was reasonably to be anticipated. A purely personal reliance was therefore not involved. Schmidts have never asserted that plans and specifications were submitted by them to the Association for approval and that their approval was unreasonably, capriciously or malevolently denied.
Fee Schedule :: Clay County, Missouri
Fully aware that appellate review of this court tried case is governed by Rule Carron, S. More specifically, the trial court's conclusion that the term "company" in Restriction VII meant Stanton and not the Association, notwithstanding the assignment, was a mismatch of law and facts. The judgment denying the Association injunctive relief against the Schmidts as prayed for in Count Two of the Association's petition is reversed and the cause is remanded to the trial court with instructions to enter a decree and judgment in favor of the Association and against the Schmidts as prayed for in Count Two of the Association's petition.
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