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Huff v. Duncan

November 10, 1972

HUFF ET UX, RESPONDENTS,
v.
DUNCAN ET UX, APPELLANTS



Appeal from Circuit Court, Marion County. Hollie Pihl, Judge.

Norma Paulus, Salem, argued the cause for appellants. With her on the brief were Duncan & Duncan, Salem.

Rolf T. Olson, Salem, argued the cause for respondents. With him on the brief was Asa L. Lewelling, Salem.

In Banc. O'Connell, C.J.

O'connell

This is a suit in which plaintiffs seek a decree declaring null and void a certain covenant which imposed building restrictions upon their land. The trial court granted the relief prayed for and defendants appeal.

Defendants purchased a parcel of land from Phil and Ida Steffes on May 25, 1962. On the same date, the parties executed a "Real Property Agreement" which recited that the Steffes, as first parties, "have sold and conveyed to GEO. R. DUNCAN, SR. and TERESE M. DUNCAN * * * a tract of land described

as follows [describing it], which conveyed land was a part of a tract conveyed to first parties [the Steffes] by deed from Schermans, recorded April 19, 1947 in Volume 367, Page 654, Deed Records for Marion County, Oregon, which tract is more particularly described as follows [describing it]." The agreement then continued as follows:

"Now as part of the consideration of the sale and conveyance to second parties, the first parties agree for themselves, their heirs and assigns, that the remainder of said land described in said volume 367, page 654 shall be restricted for residential purposes only and to residences valued at not less than $10,000.00; and that first parties and their heirs and assigns will convey to any public body, willing to accept the same as a public road, a strip of land 30 feet wide extending East and West along and adjacent to the North line of said tract conveyed to second parties, provided that second parties also convey the North 30 feet of said second parties above described land for a like purpose."

The deed from the Steffes to defendants was recorded on May 28, 1962. The Real Property Agreement was recorded sometime in May, 1962.*fn1

On July 15, 1965, the Steffes contracted to sell to Gerald and Myra Ripka a parcel of land which was a part of the land retained by Steffes after the conveyance to defendants. The contract made no mention of the building restrictions created by the Real Property Agreement. The Steffes-Ripka contract was assigned to plaintiffs on August 23, 1966. There is no evidence that plaintiffs had actual knowledge of the building restrictions.

The recording of the Real Property Agreement would operate to give the Ripkas and the plaintiffs constructive notice of the restrictions. The recorded agreement would be revealed by a reasonable search of the records and the agreement would clearly disclose to the searcher that the restrictions were imposed ...


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