97-372

 No. 97-372

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 119

 ROBERT D. URQUHART and EVELYN M. URQUHART, individually 

 and as Trustees of the URQUHART REVOCABLE LIVING TRUST, 

 Plaintiffs, Counterdefendants, Appellants 

 and Cross-Respondents,

 and

 JOHN P. TALIA, JAMES A. COTE, BARBARA L. JUNE, a/k/a BARBARA 

 L. URQUHART, and SPRING CREEK INVESTMENTS, a Montana partnership, 

 Involuntary Plaintiffs, Counterdefendants 

 and Cross-Respondents,

 v.

 OTTO H. TELLER and THE CINNABAR FOUNDATION,

 a Montana non-profit corporation,

 Defendants, Counterclaimants, Respondents 

 and Cross-Appellants. 

 APPEAL FROM: District Court of the Twenty-First Judicial District,

 In and for the County of Ravalli,

 The Honorable Jeffrey H. Langton, Judge presiding.

 COUNSEL OF RECORD:

 For Appellants and Cross-Respondents:

 William T. Wagner; Garlington, Lohn & Robinson, Missoula,

 Montana

 (for Appellants and Involuntary Plaintiffs Barbara L. June and

 Spring Creek)

 Gregory G. Schultz; Knight, Masar & Poore, Missoula,

 Montana 

 (for Involuntary Plaintiffs John P. Talia and James A. Cote)

 For Respondents:

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 Grant D. Parker; Parker Law Firm, Missoula, Montana

 Submitted on Briefs: February 12, 1998

 Decided: May 6, 1998

 Filed:

 __________________________________________

 Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

 1 Appellants Robert and Evelyn Urquhart (the Urquharts) appeal from the

April 2, 1997 opinion and order of the Twenty-First Judicial District Court,

Ravalli County, granting partial summary judgment in favor of Respondents

Otto Teller (Teller) and The Cinnabar Foundation (Cinnabar) on the

Urquharts' claim to enforce an option to purchase. Teller and Cinnabar cross-appeal 

from the District Court's grant of partial summary judgment in favor of

the Urquharts, the Urquhart Revocable Living Trust, and Involuntary

Plaintiffs/Counter-defendants John Talia (Talia), James Cote (Cote), Barbara

[Urquhart] June (June), and Spring Creek Investments on Teller and Cinnabar's

counterclaim to enforce restrictive covenants. We affirm.

 2 The parties raise the following issues:

 3 1. Did the District Court err in holding that the Urquharts may not

exercise the preemptive right of first refusal contained in the Contract for

Deed?

 4 2. Did the District Court err in holding that the covenants contained in

the Contract for Deed may not be enforced? 

 Factual and Procedural Background

 5 Teller and his late wife, Elena Teller, were the owners of 280 acres of

land in Ravalli County, Montana. In May 1971, the Tellers entered into an

agreement with the Urquharts to sell approximately 270 acres, reserving 10

acres to the Tellers (Contract for Deed). The parties executed the agreement

and deposited an unrestricted Warranty Deed in escrow.

 6 The Contract for Deed contained the following provision:

 IT IS SPECIFICALLY AGREED by and between the parties

 hereto that should Sellers choose to dispose of said ten acre

 tract, Buyers shall have the option to purchase said tract for the

 sum of $10,000.00, and in addition thereto the sum of $2000.00

 in the event there is added to the house on said premises a

 bedroom and bath. PROVIDED, HOWEVER, that this option

 shall be non-assignable unless coupled with the assignment of

 this contract and the sale of the said premises and this option as

 a unit, and shall absolutely expire unless said option be

 exercised by Buyers within six months of written notice by

 Sellers that the property is to be disposed of. On death of

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 Sellers, Buyers shall have the right to exercise said option, but

 the time for payment thereof shall be extended to six months

 after notice is given hereunder by the personal representatives

 or heirs of Sellers. Death of Buyers, however, shall not

 terminate this option . . . .

Teller states that he intended to grant the Urquharts a temporary option during

the term of the Contract for Deed to ensure that the property would not be

divided should he or his wife die before the Contract for Deed was paid off. 

The Urquharts claim that Teller intended to grant them an option exercisable

upon sale of the property or upon the death of the Tellers and that Teller was

told by his attorney that the option would continue in full force after the

Contract for Deed was paid off. 

 7 The Contract for Deed also contained restrictions on constructing

improvements on or selling portions of the property, on committing waste, and

on removing or destroying improvements on the property. The Contract for

Deed stated that no covenant would be waived by the Tellers' choosing not to

enforce it and that "[t]he covenants and conditions hereof run with the land

and are binding upon the heirs, executors, administrators and assigns of the

parties hereto." The Urquharts state that they were told these covenants were

not permanent, but were intended to protect the Tellers in the event they

defaulted on the Contract for Deed. 

 8 On January 9, 1979, the Urquharts contracted to sell 11.31 acres of the

property to Raymond Bartram (Bartram). On January 17, 1979, the Urquharts

paid off the Contract for Deed, and the unrestricted Warranty Deed was

released from escrow and recorded. Teller did not object to the Urquharts'

selling a portion of the property to Bartram. Bartram constructed substantial

improvements on the property, and Teller never sought to enforce the

restrictive covenants. Bartram subsequently conveyed his portion to Talia, and

Talia conveyed an undivided one-half interest to Cote. 

 9 After paying off the Contract for Deed, the Urquharts built a home,

machine shed, hay barn, and another house on the property. Although Teller

was aware of the construction, he did not seek to enforce the covenant

prohibiting improvements on the property. In 1982, the Urquharts conveyed

all of their remaining interest in the 270 acres to the Urquhart Revocable

Living Trust. The Urquhart Revocable Living Trust conveyed a portion of the

property to June and a portion to Spring Creek Investments, a partnership

comprised of June and her brother, Tom Urquhart. In the contract for sale

with Spring Creek Investments, the Urquharts, as trustees of the Urquhart

Revocable Living Trust, purported to assign the option, but agreed to exercise

it on Spring Creek's behalf if it were deemed non-assignable.

 10 The Urquharts claim that on several occasions since the Contract for

Deed was satisfied, both Teller and his nephews have offered to buy portions

of the Urquharts' property and have attempted to purchase the option. In July

1993, the Urquharts received a letter from Teller's attorney, which stated that

Teller would not commence litigation for the Urquharts' violation of the

covenants if they would agree to new covenants prohibiting the construction

of more than one house on each portion of the property and if they would

agree to release their option to purchase. 

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 11 In the fall of 1993, Teller conveyed his 10-acre parcel to Cinnabar, a

non-profit corporation dedicated to the conservation and protection of

Montana's lands and waters, as a charitable gift. The value of the 10-acres

plus improvements had increased to between $375,000 and $400,000. On

August 23, 1994, the Urquharts, individually and as trustees of the Urquhart

Revocable Living Trust, filed suit in the District Court seeking to enforce the

option. Teller and Cinnabar counterclaimed to enforce the restrictive

covenants contained in the Contract for Deed and joined Talia, Cote, June, and

Spring Creek Investments as involuntary plaintiffs. 

 12 All parties filed motions and cross-motions for summary judgment. On

March 31, 1997, the District Court entered its opinion and order granting

partial summary judgment for Teller and Cinnabar on the Urquharts' claim to

specifically enforce the option. The District Court held that the option, which

it characterized as a preemptive right of first refusal, was limited to the

duration of the Contract for Deed, constituted an unreasonable restraint on

alienation, and violated the Rule against Perpetuities. The court also found

that, considering the fair market value of the property, it would be inequitable

to enforce the terms of the right of first refusal.

 13 The District Court also granted partial summary judgment in favor of

the Urquharts and involuntary plaintiffs on Teller and Cinnabar's

counterclaims. The District Court held that the restrictive covenants did not

run with the land because they were not contained in a grant of an estate in

real property. The court also held that the statute of limitations barred their

claims for violations of the covenants occurring more than eight years before

filing of the action and that laches barred their claims for violations occurring

within the statute of limitations. The parties appeal from this order. 

 Standard of Review

 14 We review a district court's grant of summary judgment de novo. 

Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont.

239, 242, 907 P.2d 154, 156. Therefore, pursuant to Rule 56, M.R.Civ.P., we

review the record to determine whether material issues of fact exist and

whether the movant is entitled to judgment as a matter of law. Bruner v.

Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.

 Discussion

 15 1. Did the District Court err in holding that the Urquharts may not

exercise the preemptive right of first refusal contained in the Contract for

Deed?

 16 As noted by the District Court, the "option" provision is actually a

preemptive right of first refusal, triggered only upon Teller's choosing to sell

or transfer the 10-acre parcel or upon his death. The Urquharts argue that the

right of first refusal was triggered when Teller transferred the property to

Cinnabar and that the District Court erred in refusing to grant the Urquharts'

request for specific performance. The District Court held that the right of first

refusal was enforceable only during the period of the Contract for Deed, was

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an unreasonable restraint on alienation, and violated the Rule against

Perpetuities. The court also held that granting the Urquharts specific

performance would be inequitable. We agree that the right of first refusal is

an unreasonable restraint on alienation. Because we determine that the right

of first refusal is void, we need not reach the issues of its possible duration or

of the equities of specific performance.

 17 Under Montana law, a condition restraining alienation, when repugnant

to the interest created, is void. Section 70-1-405, MCA. This Court discussed

the reasonableness of a restraint on alienation in Edgar v. Hunt (1985), 218

Mont. 30, 706 P.2d 120. In that case, the Hunts sold real property to Omer

and Alma Edgar. Edgar, 706 P.2d at 121. The parties agreed that the Hunts

would have the first option to purchase the property for $7,000 on written

notice from the Edgars of their intention to sell. Edgar, 706 P.2d at 121. After

the death of her husband, Alma Edgar filed a quiet title action, seeking to

invalidate the option agreement. Edgar, 706 P.2d at 121. The district court

granted summary judgment for Edgar, holding that there was no consideration

to support the option and that it was an unreasonable restraint on alienation. 

Edgar, 706 P.2d at 121.

 18 This Court set forth the factors to be considered in determining whether

a restraint is void under 70-1-405, MCA:

 The type of price set is important. If the price is fixed and

 greatly disproportionate to the market value of the property, this

 supports a finding of unreasonableness. Secondly, the intent of

 the parties contracting for the pre-emptive right is a factor. If,

 from the circumstances, it appears that the particular restraint,

 or the price set thereby, is primarily for the purpose of

 restraining the alienability of the property, it will weigh heavily

 against the validity of the restraint. On the other hand, if the

 circumstances suggest that the restraint was freely entered into

 by mutual consent as a normal incident of an equal bargaining

 relationship in order to promote the original transfer of the

 property, the scales will tip back towards the reasonableness of

 the restraint. [Citations omitted.] 

Edgar, 706 P.2d at 122. The Edgar Court remanded to the district court to

consider the option provision in light of these factors. Edgar, 706 P.2d at 122. 

 19 In this case, the price set in the 1971 right of first refusal is fixed at

$10,000 (or $12,000 in the event a house was erected on the property). Some

23 years later, the market value of the 10-acre parcel and improvements

thereon had increased to between $370,000 and $400,000. Obviously, at

nearly 35 times greater, the market value is grossly disproportionate to the

option price. Other courts considering the issue have found much smaller

variances in option and market price to be unreasonable. For example, a New

Jersey court found that a $10,000 fixed option to purchase property valued at

$40,000 was an unreasonable restraint. Ross v. Ponemon (N.J. Super. 1970),

263 A.2d 195. A Texas court held an option price of $79,955 to be

unreasonable where the property value had risen to $550,000. Procter v.

Foxmeyer Drug Co. (Tex. App. 1994), 884 S.W.2d 853. 

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 20 In determining the reasonableness of a restraint, we also consider

whether the restraint was entered into by mutual consent as a normal incident

of an equal bargaining relationship or whether the parties intended for it to

restrain the alienation of the property. Edgar, 706 P.2d at 122. If the person

imposing the restraint has some interest in land which he is seeking to protect

by the enforcement of the restraint and if the enforcement of the restraint

accomplishes a worthwhile purpose, the restraint is more likely to be

reasonable. Edgar, 706 P.2d at 122 (citing Restatement of Property:

Perpetuities and other Social Restrictions (1994) [hereinafter "Restatement of

Property"] 406 cmt. i).

 21 In this case, the evidence does not suggest that the Urquharts intended

for the right of first refusal to restrain Teller from transferring his ten acres,

but rather that the Urquharts sought to ensure they would be able to buy the

acreage adjoining their own if they so desired. However, since the parties

entered the agreement, the Urquharts have conveyed their entire interest in the

property, and the property is now in the hands of several different owners,

including the Urquhart Revocable Living Trust and involuntary plaintiffs. 

Thus, the Urquharts' legitimate purpose of obtaining ownership to neighboring

property can no longer be served by enforcing the option. Enforcing the right

of first refusal at this point would simply restrain Teller from transferring the

property or give the Urquharts the bargain purchase of the century. 

 22 The Restatement's reasonableness factors also include whether the

restraint is limited in duration, allows a substantial variety of types of

transfers, or is limited as to the number of persons to whom transfer is

prohibited. Restatement of Property 406. The Urquharts' right of first

refusal states, in part: 

 On death of Sellers, Buyers shall have the right to exercise said

 option, but the time for payment thereof shall be extended to six

 months after notice is given hereunder by the personal

 representatives or heirs of Sellers. Death of Buyers, however,

 shall not terminate this option . . . .

Thus, the right of first refusal affects the alienability of the property in all

types of transfers to all transferees. 

 23 Further, the District Court found that the right was of potential

perpetual duration and therefore violated the Rule against Perpetuities. The

District Court concluded that, under the language of the right, if the personal

representatives or heirs of Sellers failed to give Buyer notice of Seller's death,

the six-month period would never be triggered and the right would go on in

perpetuity. However, in interpreting similar option language, other courts have

held that when death triggers the buyer's right, the representatives or heirs of

the seller are required to give the buyer notice within a reasonable time of

death. See, e.g., Smerchek v. Hamilton (Kan. App. 1980), 606 P.2d 491. The

Rule against Perpetuities should not be applied when it is possible to give an

instrument a construction which leads to its validity. Trust Created Under

Will of Damon (Haw. 1994), 869 P.2d 1339; Matter of Estate of Crowl (Okla.

1987), 737 P.2d 911; Oliner v. City of Englewood (Colo. App. 1979), 593

P.2d 977. Therefore, we adopt the interpretation of the right of first refusal

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that does not violate the rule and determine that the right of first refusal

imposed an obligation on Teller's heirs or representatives to give the Urquharts

notice of death within a reasonable time. However, that the restraint could be

interpreted as existing in perpetuity further supports our holding that it is an

unreasonable restraint on alienation. 

 24 Under the Restatement of Property, a restraint that tends to increase the

value of the property or that is imposed on property that is not otherwise

marketable is more reasonable. Restatement of Property 406. In this case,

the right of first refusal fixes the price of the property, property that has

appreciated in value to almost $400,000, at $10,000. Obviously, such a

restraint decreases, rather than increases, the value of the property. Further,

the property's market value and location in the Bitterroot Valley suggest that

without the fixed price restraint, the property would be highly marketable. 

 25 We determine that the right of first refusal is an unreasonable restraint

on alienation. The District Court correctly concluded that, under 70-1-405,

MCA, the right is repugnant to Teller's interest and therefore void. 

 26 2. Did the District Court err in holding that the covenants contained in

the Contract for Deed may not be enforced?

 27 The Contract for Deed executed by the parties in 1971 contained

covenants prohibiting the Urquharts from constructing improvements on or

transferring portions of the property. The Warranty Deed, which was released

from escrow when the Urquharts paid off the Contract for Deed in 1979,

contained no restrictions or references to the Contract for Deed. Teller argues

that the covenants contained in the Contract for Deed run with the land and

that, despite his failure to enforce them in the past, he should be free to

enforce them in the future. 

 28 It is a general tenet of contract law that all provision in a contract for

sale of real property are merged into the deed. Davis v. Tazewell Place

Associates (Va. 1997), 492 S.E.2d 162; U.S. v. Mojac Const. Corp. (E.D.N.Y.

1960), 190 F.Supp. 622; Colorado Land & Resources, Inc. v. Credithrift of

America, Inc. (Colo. App. 1989), 778 P.2d 320. Thus, when a deed has been

executed, the purchaser's rights are generally founded in the deed covenants,

not the executed contract. Simpson v. Johnson (Idaho 1979), 597 P.2d 600. 

An exception to the general rule of merger occurs when the parties intended

for an agreement in a contract for sale to be collateral. Baxter v. Stubbs (Utah

1980), 620 P.2d 68. Covenants relating to title, quantity, and possession of

land are generally not collateral and merge into the deed. Lazy Dog Ranch v.

Telluray Ranch Corp. (Colo. App. 1996), 923 P.2d 313. In this case, we hold

that Teller and the Urquharts did not intend for the covenants to be collateral

agreements and that they merged with and were extinguished by the

unrestricted Warranty Deed. 

 29 Teller and Cinnabar argue that the covenants should be enforced

because the Contract for Deed specifically states that they run with the land

and because they were properly recorded when the Contract for Deed was

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filed. They state that this Court has held that restrictive covenants do not need

to be contained in a deed granting title to the property and cite Kosel v. Stone

(1965), 146 Mont. 218, 404 P.2d 894, for the proposition that restrictive

covenants filed in the clerk and recorder's office bind a subsequent purchaser,

regardless of whether that purchaser had knowledge of the restrictions.

 30 We find Kosel readily distinguishable. In that case, the developer had

filed a subdivision plat and declaration of restrictions in the clerk and

recorder's office. Kosel, 404 P.2d at 895. The developer originally conveyed

the lots by deeds which referenced the restrictions; however, when the Stones

purchased their lot, the deed from the seller did not mention the restrictions,

and the Stones claimed that they were unaware that the declarations existed. 

Kosel, 404 P.2d at 895. This Court affirmed the district court in holding that

the declaration of restrictions ran with the land. Kosel, 404 P.2d at 896. We

noted that the restrictions were recorded prior to the Stones' purchasing their

lot and that the Stones' deed described the property as being located in the

subdivision according to the official plat on file. Kosel, 404 P.2d at 897. 

Thus, we determined that the Stones had constructive notice of the official plat

and declaration of restrictions and that they became part of the Stones' deed. 

Kosel, 404 P.2d at 897.

 31 In Kosel, the declaration of restrictions was not contained in a contract

for sale between the same parties who executed the deed, but rather was a

separate document filed by the original developer. The facts in Kosel did not

necessitate application of the doctrine of merger, which only applies where a

buyer and seller enter into a contract for the sale of real property and

subsequently execute a deed conveying title to the real property. 

 32 We agree with Teller and Cinnabar that a contract for sale of property

can contain a valid covenant running with the land. However, we determine

that the evidence in this case suggests that Teller and the Urquharts intended

for the Contract for Deed, and the restrictions set forth therein, to merge into

the Warranty Deed. Teller and the Urquharts executed the Contract for Deed

and the Warranty Deed at the same time and intended for the Warranty Deed

to be recorded upon the Urquharts' performance of the contract. The parties

did not record the Contract for Deed at the time it was executed. In fact, it

was not recorded until the following year when the Urquharts recorded it as

part of an unrelated real estate transaction. The Warranty Deed makes no

reference to restrictive covenants, and no separate declaration of covenants

was ever filed. The notice of purchaser's interest recorded by the Urquharts

and Teller at closing makes no reference to any property restrictions. Further,

the remedies for breach provided in the Contract for Deed were exclusive to

the contracting parties and did not extend to heirs or assigns.

 33 Therefore, we apply the general rule of merger and hold that the

District Court did not err in refusing to enforce the covenants contained in the

Contract for Deed or in refusing to hold that they may be enforced in the

future.

 34 Based on the foregoing, we affirm the decision of the District Court.

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 /S/ W. WILLIAM LEAPHART

We concur:

/S/ JIM REGNIER 

/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

Justice Terry N. Trieweiler specially concurring in part and dissenting in part.

 35 I concur with the majority's conclusion that the preemptive right of first

refusal claimed by the plaintiffs is void as an unreasonable restraint on

alienation. I dissent from that part of the majority opinion which holds that the

restrictive covenants agreed upon by the Tellers and Urquharts as partial

consideration for the transfer of real estate among them are unenforceable.

 36 The real estate contract executed by the parties included the following

relevant provisions:

 IT IS SPECIFICALLY AGREED by the parties hereto that there shall

 be no construction on the property except by mutual written agreement

 between the parties. But it is agreed that a 2-car garage with reasonable shop

 facilities may be erected near the pump house which shall be of the same

 quality and style as the pump house.

 

 . . . .

 

 BUYERS SPECIFICALLY AGREE that they will not sell or contract

 to sell portions of the above described property, although nothing in this

 paragraph contained shall prevent the assignment of this contract or the sale

 of said premises as a unit. 

 

 . . . .

 

 . . . [T]he failure of sellers to insist in any one instance or more upon

 the performance of any of the covenants or conditions of this contract or of

 exercising any right or privilege herein contained, shall not be construed as

 thereafter waiving any such covenants, conditions, rights, or privileges, but 

the

 same shall continue and remain in full force and effect, and it is expressly

 agreed that there are no promises, agreements or understanding or

 representations of any kind other than those contained in this written

 agreement, and that no agent has or had any authority to obligate the sellers by

 any promises, stipulations or conditions not herein expressed.

 

 The covenants and conditions hereof run with the land and are binding

 upon the heirs, executors, administrators and assigns of the parties hereto.

 

 37 The majority holds, without explaining the basis for its conclusion, that 

the parties did

not intend the restrictive covenants to be a collateral agreement and, therefore, 

that the

contract for deed merged with the unrestricted warranty deed. The majority does 

exactly

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what the very terms of the contract prohibit when it assumes that the parties 

intended

something other than indicated by the plain language of their agreement. The plain 

language

of the parties' agreement provides for restrictions which "run with the land and are 

binding

upon the heirs, executors, and assigns of the parties hereto."

 A covenant running with the land is one so relating to the land, that its

 benefit or obligation passes with the ownership irrespective of the consent of

 subsequent parties.

 

 In order for a covenant to run with the land, the grantor and grantee

 must intend that the covenant run with the land, that the covenant touch and

 concern the land, and that there be privity of estate between the original 

parties

 to the covenant, the original parties and the present disputants, or between the

 party claiming the benefit of the covenant and the party who rests under the

 burden.

 

 In addition, the covenant must be in writing, must have been

 enforceable between the original parties, and the successor to the burden must

 have notice.

 

 Where the intention of the parties is the determining factor, such intent

 will be ascertained from the facts, as appear from the grant itself and the

 surrounding circumstances.

 

 21 C.J.S. Covenants 25 (1990).

 38 Section 70-17-201, MCA, establishes as a matter of statutory law that certain

covenants run with the land in Montana. It provides:

 Certain covenants contained in grants of estates in real property are

 appurtenant to such estates and pass with them so as to bind the assigns of the

 covenantor and to vest in the assigns of the covenantee in the same manner as

 if they had personally entered into them. Such covenants are said to run with

 the land.

 

 39 Section 70-17-203(1), MCA, explains which covenants run with the land in 

Montana. 

It provides that "[e]very covenant contained in a grant of an estate in real 

property, which is

made for the direct benefit of the property or some part of it then in existence, 

runs with the

land."

 40 In this case, the contract for deed executed by Tellers and Urquharts, when 

filed with

the Clerk and Recorder in Ravalli County, satisfied all of the necessary 

prerequisites to bind

the land conveyed by Tellers and to provide notice to subsequent purchasers.

 41 Furthermore, this Court has not had difficulty in the past with the argument 

that a

subsequent warranty deed which includes no restrictions on the use of land 

supersedes an

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earlier agreement which placed restrictions on the use of that same land. In Kosel 

v. Stone

(1965), 146 Mont. 218, 404 P.2d 894, the owners of land near Billings, prior to the 

sale of

that land, entered into an agreement with the seller entitled "declaration of 

restrictions"

which provided that no lot in what was about to be a subdivision could be used for 

other than

residential purposes. That declaration was filed in the clerk and recorder's 

office. The lots

were subsequently conveyed by a deed which made no reference to the declaration of

restrictions. The property was later conveyed to Stone by deed which made no 

mention of

building or use restrictions. When neighbors eventually learned that Stone wanted 

to put a

filling station on his property, they brought suit to have the "declaration of 

restrictions"

enforced. The district court did so. On appeal, Stone contended that the only 

covenants

which run with the land are those contained in a grant of real estate, and that the 

agreement

between the parties which placed restrictions on the use of his land was not a grant 

of real

estate. While not specifically referring to principles of merger, this Court held 

on appeal that

because the declaration of restrictions affected the title to the real estate it 

was, in effect, a

conveyance and that, furthermore, because the document was filed with the clerk and

recorder of Yellowstone County, it was as much a part of the deed as if fully 

incorporated

therein by its terms. This Court stated:

 Under our recording statutes these instruments [including the

 declaration of restrictions] constituted constructive notice of their contents 

to

 subsequent purchasers. Section 73-201, R.C.M. 1947. Since defendants' deed

 described the property as being located in the subdivision according to the

 official plat on file, the official plat becomes as much a part of the deed as 

if

 fully incorporated therein, and the same situation applies to the declaration of

 restrictions. See 16 Am.Jur. Deeds, Sec. 273, p. 592.

 

 . . . .

 

 ". . . [T]he term conveyance as used in section 1213 of said Code

 embraces every instrument in writing by which an estate in real property is

 created, aliened, mortgaged, or encumbered or by which the title to any real

 property may be affected, except wills. This definition of 'a conveyance of

 real property' is sufficiently comprehensive to include the agreement which is

 the basis of the present controversy." Wayt v. Patee, 205 Cal. 46, 53, 269 P.

 660, 663 [emphasis in original].

 

 Our own court has defined the word "conveyance," as used in sections

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 73-201 and 73-203 to include . . . a contract for sale of land, Piccolo v.

 Tanaka, 78 Mont. 445, 451, 253 P. 890 . . . .

 

 Kosel, 146 Mont. at 222-23, 404 P.2d at 896-97 (emphasis added).

 42 Likewise, the contract for deed executed by Tellers and Urquharts was a 

conveyance

of an interest in land which included restrictions on Urquharts' use of the land 

conveyed. 

That contract, including those restrictions, was filed with the clerk and recorder 

in Ravalli

County, thereby placing all of the public, including subsequent purchasers, on 

constructive

notice of its terms, and they are as binding as if included in the warranty deed 

which was

subsequently filed.

 43 There is simply no basis for the majority to conclude that the Tellers and 

Urquharts

intended that the contract for deed merge with the warranty deed. The best and only

necessary evidence of the parties' intention is the plain language of their contract 

for deed

which provides that the restrictions therein on Urquharts' use of the land run with 

the land

and are binding on Urquharts' successors. Where the language of the contract is 

clear, the

court has no authority to contradict those terms by assuming that the parties 

intended

something else. See Carbon County v. Dain Bosworth, Inc. (1994), 265 Mont. 75, 87, 

874

P.2d 718, 726; First Security Bank of Anaconda v. Vander Pas (1991), 250 Mont. 148, 

153,

818 P.2d 384, 387. Furthermore, had the parties chosen to do what the majority has, 

in

effect, done for them, they could have stated, as Urquharts did in subsequent 

conveyances,

that restrictions on use of the property being conveyed are limited to the term of 

the contract

for deed. The fact that they included such a provision in subsequent contracts by 

which they

conveyed parts of the land in question makes clear that the parties to this contract 

understood

the significance when they stated a contrary intention.

 44 The fact that the remedies provided for breach in the contract for deed were 

exclusive

to the contracting parties is of no significance. The remedies provided for breach 

in the

contract (termination of the contract and forfeiture of rights) do not include all 

of the

remedies available for breach of a contract, and there is nothing in the contract 

which would

preclude enforcement of other remedies, such as injunctive relief or damages for or 

against

either of the parties' successors in interest.

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 45 I do agree with the District Court that principles of laches bar enforcement of 

the land

use restrictions against those persons who violated them prior to the date on which 

Tellers'

counterclaim was filed. 

 Laches exists where there has been an unexplainable delay of such duration

 or character as to render the enforcement of an asserted right inequitable, and

 is appropriate when a party is actually or presumptively aware of his rights but

 fails to act. 

 

 Murray v. Countryman Creek Ranch (1992), 254 Mont. 432, 435-36, 838 P.2d 431, 

433.

 46 However, I do not believe the doctrine of laches, nor the notice provision in 

the

enforcement part of the contract for deed, preclude future enforcement of the 

contract's terms

and prevention of future violations. This is so because of the specific nonwaiver 

provision

in the agreement. 

 47 For these reasons, I dissent from that part of the majority opinion which holds 

that

those restrictions in the contract for deed which limit the use of the land conveyed 

to

Urquharts are unenforceable. I would reverse that part of the District Court 

judgment;

however, I would limit enforcement to future violations.

 48 I otherwise concur with the majority opinion.

 /S/ TERRY N. TRIEWEILER

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