Caldwell v. Bradford

102 S.E.2d 399, 248 N.C. 48, 1958 N.C. LEXIS 326

• Court: Supreme Court of North Carolina
• Decided: March 19, 1958
• Status: Published

Opinion

Bobbitt, J.

Plaintiffs’ only exception is “to the signing and entering of the . . . Judgment”; and plaintiffs’ only assignment of error is “that the Court erred in signing the judgment, . . . and in his conclusions and findings of fact upon the evidence for that they were against the weight, and not sustained by, the evidence.”

To the extent plaintiffs’ assignment of error purports to challenge the court’s findings of fact it is not supported by exception. Moreover, it is broadside. It does not present for review the competency or sufficiency of the evidence upon which the findings of fact are based. Whether the findings of fact support the judgment and whether error of law appears on the face of the record are the only questions presented by plaintiffs’ exception, appeal and assignment of error. Weddle v. Weddle, 246 N.C. 336, 98 S.E. 2d 302, and cases cited.

We pass, without decision, whether plaintiffs’ Exhibit A was sufficient, as of February 28, 1939, to impose upon Lots 14 and 15, except said “triangular portion,” a residential use restriction, enforceable by the owner of Lot 3, one of the two lots now owned by plaintiffs; for, assuming the validity of such restriction as of February 28, 1939, on legal principles discussed fully in Shuford v. Oil Co., 243 N.C. 636, 91 S.E. 2d 903, and cases cited, the said findings of fact fully support the judgment.

Since all owners of Lots 1-15, inclusive, except plaintiffs, executed the agreement of October 27, 1955, defendants’ Exhibit A, plaintiffs’ declaration, set forth in the caption, to the effect that this action was instituted on behalf of themselves and all other parties owning Lots 1-15, inclusive, "who may come in and be made parties plaintiff,” would seem unrealistic.

Affirmed.