Bailey v. Jackson-Campbell Co.

131 S.E. 567, 191 N.C. 61, 1926 N.C. LEXIS 8

• Court: Supreme Court of North Carolina
• Decided: January 27, 1926
• Status: Published

Opinion

Adams, J.

The vital question is whether the defendants are prohibited by the restrictions in the deed from the Central Development Company to Sarah B. Pelton and in the deeds from E. W. Grove to the plaintiff and other purchasers from building the described apartment house on the lot known as the Pelton property. The plaintiff admits that he* derives title to the western portion of his lots from the Central Development Company and to the eastern portion from E. ~W. Grove. There is a marked difference in the phraseology of the restrictions embraced in the deeds of these respective grantors. The grantees in the deeds from Grove covenant not to erect, license, or suffer to be erected or maintained on the conveyed property any commercial or manufacturing establishment, or factory, or tenement, or apartment house, but as to the grantees in the deeds from the other source there is no direct reference to an apartment house. The restrictive covenants which equally affect the plaintiff and the defendants as to that part of their holdings derived, from the Central Development Company include the following: the grantee shall not erect or suffer or license to be erected on his lot any commercial or manufacturing establishment or factory or a bouse or building to be used as a sanitarium or hospital of any kind, or at any time use or suffer to be used any building or buildings erected thereon for any such purpose . . . will not build more than one residence on either lot of said land, . . . and will not during the term of twenty years sell or convey the lot or any part thereof to a negro or to a person of any degree of negro blood, or any person of bad character. It is stipulated that these shall be covenants running with the land and shall be kept by the grantee and his heirs and assigns forever.

The deed from the Central Development Company to Herbert W. Pelton and Sarah B. Pelton, his wife, is dated 21 February, 1916, and the deeds from Grove to W. L. Jenkins and Jane Banks Amiss, under whom in part the plaintiff claims title, were executed 18 April, 1923. The date at which the plaintiff acquired title to the western portion of his lots from the Central Development Company does not distinctly appear. Lot 17 conveyed by Grove is not subject to all the restrictive covenants set out in the other deeds, but it is to be used only as a frontage or approach to Kimberly Avenue.

In Homes Company v. Falls, 184 N. C., 426, 439, Stacy, J., citing other authorities quotes with approval the following general statements taken from 18 C. J., 394: “Where the owner of a tract of land subdivides it and sells distinct parcels thereof to separate grantees, imposing restrictions upon its use pursuant to a general plan of development or improvement, such restrictions may be enforced by any grantee against any other grantee, either upon the theory that there is a mutuality of covenant and consideration or upon the ground that mutual negative equitable easements are created. Where parcels are sold with reference to sudh a uniform plan to persons having notice thereof, the grantees may enforce the restrictions within this rule irrespective of the order of the several conveyances, and irrespective of whether the covenants run with the land, and without regard to whether the restriction is expressed in the separate conveyances, or whether the person against whom it is sought to enforce the restriction derived title from the same grantor.” And in Davis v. Robinson, 189 N. C., 589, Varser, J., quoted with approval from Donahoe v. Turner, 204 Mass., 274: “Where the original proprietor of a tract of land made conveyances of portions of it subject to certain restrictions, but also conveyed portions of it free from any restrictions whatever, the facts do not warrant a finding that a general building scheme founded on such restrictions was adopted for the entire tract.”

With the exception of No. 17, so far as the record discloses all the lots in Block A, known as “E. W. Grove’s Kimberly Lands,” have been sold subject to the restrictive covenants in the deeds to W. L. Jenkins and Jane Banks Amiss; and the plaintiff contends tbat in the sale of all this property Groves adopted a general plan or scheme to be uniformly observed and enforced for the benefit of all purchasers. He says, moreover, that he and the defendants are alike affected with the covenants in the deeds executed by the Central Development Company, as heretofore pointed out.

In the sale of the Grove or Kimberly Avenue property in Block A, a general plan or scheme seems to have been devised and enforced for the promotion of a residential section and the development of the lots therein at least for a specified period by the building of residences or homes; and in our opinion this general scheme is not annulled or defeated by the omission of a restrictive covenant in the deed conveying lot 17, particularly as it appears from its location and topography to be incapable of beneficial use except for the purpose of connecting the Pelton lot with Kimberly Avenue and not to be adaptable or-suitable as a lot on which to erect a residence or other building. In fact, the defendant, Jackson-Campbell Company, admits its purpose to be to use this lot as a lawn and entrance to the apartment house to be built on the Pelton property. The restrictive covenants in the Grove, conveyances were intended and by by their terms were expressed to be for the benefit of future purchasers and owners of the lots within the designated lines of the block; and the use of lot 17 (not large enough for a building if the restriction limiting the site to twenty feet from Kimberly Avenue be observed) as an entrance to a building, if its erection is prohibited by other restrictive covenants, would not be in keeping with the general scheme under which the lots were sold.

The controversy in reference to the restrictions in the deeds executed by the Central Development Company is dependent principally upon the interpretation of the covenant on the part of the grantee not to “build more than one residence on either lot of said land,” though authorized to build a garage or stable in keeping with the premises and residence built thereon. It will be noted that the restrictions in the deed from the Central Development Company to Pelton apply also to the plaintiff’s property, a part of which was acquired by Grove from the development company. In the deeds made by Grove to the parties under whom the plaintiff claims these restrictions and others more stringent were included — the Grove deeds expressly prohibiting the erection of an apartment house or any house to be occupied by more than one family. It appears, then, that the plaintiff is undertaking as grantee to enforce a restrictive covenant against another grantee claiming under the development company, a common source, whose deeds contained the same restrictions — -thereby presenting the question which was disinguished because not raised in Homes Company v. Falls, supra, p. 431.

Tbe covenants in tbe deeds executed botb by Grove and by tbe development company indicate a common purpose to use tbe lots as sites for residences and to prevent tbe erection of more tban one residence on either lot. So tbe point in controversy is wbetber tbe restrictions in tbe deed to Pelton, under wbom tbe Jaekson-Campbell Company bolds a contract or deed without a repetition of tbe restrictions will prevent tbe erection of tbe proposed apartment bouse on tbe Pelton property, a part of tbe contract being that tbe covenants shall run with tbe land and be kept by tbe grantee, bis heirs and assigns forever.

By a critical examination of tbe record and tbe authorities we are satisfied that an apartment bouse is not a residence in contemplation of tbe several restrictive covenants set out in tbe various deeds. We have not overlooked tbe reasoning in Hutchinson v. Ulrich, 21 L. R. A. (Ill.), 391, but do not regard it as controlling in our interpretation of tbe restrictions in tbe present ease. These covenants tbe plaintiff has a right to enforce unless precluded by their omission from tbe deed executed by Pelton to tbe defendant company, and this omission, we think, does not antagonize tbe plaintiff’s position. Tbe defendants acquired title with notice of tbe covenants and are barred thereby. 18 C. J., 394, 397. It has been suggested that tbe restrictions, having no limitation, are void as against public policy. There is highly respectable authority for tbe position that a restriction of this kind is not necessarily void because it purports to be perpetual, though it is not impossible that conditions may arise which would impel a relaxation of tbe rule. 18 C. J., 401.

Tbe judgment of tbe Superior Court is

Affirmed.