Basore v. Johnson

PREWITT, Chief Judge.

I agree with the majority opinion on appeal No. 13756. Although I see some considerations favoring its reasoning on appeal No. 13752,1 respectfully disagree with that reasoning.

I believe that § 442.390, RSMo 1978, imparts notice to Johnson of the contents of the deed from the Edwardses to the Barnetts. The deed conveyed a “negative easement” in tract B. See Tracy v. Klausmeyer, 305 S.W.2d 84, 88 (Mo.App.1957). That deed might not be a “link” in the “chain” of documents by which Johnson acquired his interest in tract B, but it was in his “chain of title” as a document by the record owners affecting that tract. The indexing system required for a recorder of deeds allows a searcher to find the deed under the then record owners’ names. See §§ 59.440 and 59.470, RSMo 1978.

The Missouri cases relied on in the principal opinion involved documents recorded while the grantor did not have record title. In that situation a searcher might not find the deeds as the index would be checked for the name of the record owner during the period of that record ownership.

There are factual differences here with King v. St. Louis Union Trust Co., 226 Mo. 351, 126 S.W. 415 (1910), but in considering what was within the “chain of title”, the court there concludes that while record title is in a grantor, “it is clear that a purchaser is affected with constructive notice of all duly recorded conveyances by his grantor affecting the latter’s title”. 126 S.W. at 419-420. See also Scurlock, Missouri Law of Land Agreements Which Run with the Fee, 23 K.C.L.Rev. 3, 49 (1954); Kuhn v. Saum, 316 Mo. 805, 291 S.W. 104, 106 (1926).

I believe Harp v. Parker, 278 Ky. 78, 128 S.W.2d 211 (1939), and Bishop v. Rueff, 619 S.W.2d 718 (Ky.Ct.App.1981), referred to in the principal opinion, reached the correct result in finding notice to subsequent owners of a deed by a record owner restricting land retained. That appears to be the majority view. See Annot., 16 A.L.R. 1013 (1922); 20 Am.Jur.2d, Covenants, Condi*111tions, and Restrictions, § 309 at pp. 872-873. See also Jones v. Lambert, 298 S.W.2d 297 (Ky.1957); McLean v. Thurman, 273 S.W.2d 825 (Ky.1954); Guillette v. Daly Dry Wall, 367 Mass. 355, 325 N.E.2d 572 (1975); Beekman v. Schirmer, 239 Mass. 265, 132 N.E. 45 (1921); Howland v. Andrus, 80 N.J.Eq. 276, 83 A. 982 (1912), rev’d on other grounds, 81 N.J.Eq. 175, 86 A. 391 (1913); DiCarlo v. Cooney, 282 Pa.Super. 477, 423 A.2d 3 (1980); Painter v. MacDonald, 427 S.W.2d 127 (Tex.Civ.App.1968), rev’d on other grounds, 441 S.W.2d 179 (Tex.1969).

However, I believe that the result the majority opinion reached was correct. Restrictions in derogation of the fee are not favored. Hall v. American Oil Co., 504 S.W.2d 313, 317 (Mo.App.1973). Applying the principles set forth in Hall, 504 S.W.2d at 317-319, and the cases there cited, I conclude that the restriction here was not enforceable against Johnson. For that reason I concur in the result.