Julian v. Lawton

82 S.E.2d 210, 240 N.C. 436, 1954 N.C. LEXIS 438

• Court: Supreme Court of North Carolina
• Decided: June 4, 1954
• Docket: 753
• Status: Published

Opinion

EeviN, J".

We take it for granted without so deciding for the purpose of this particular ease that the covenant in question was valid in law at the time of its insertion in the deed to the plaintiffs’ grantors. Since we indulge this assumption, our decision must turn on the construction of the relevant documents.

The law looks with disfavor upon covenants restricting the free use of property. As a consequence, the law declares that nothing can be read into a restrictive covenant enlarging its meaning beyond what its language plainly and unmistakably imports. Starmount Co. v. Memorial Park, 233 N.C. 613, 65 S.E. 2d 134, 25 A.L.R. 2d 898.

"When the plaintiffs’ grantors agreed that no dwelling house or other building should be erected on Lot 57 until the type and exterior lines of the structure had been “approved by W. C. Coker or by an architect selected by him,” they made this twofold covenant in plain and unmistakable language: First, that Dr. Coker should possess the absolute power to determine the type and exterior lines of any building to be erected on Lot 57 unfettered by any external or revealed standards or limitations whatsoever; and, second, that Dr. Coker could exercise this absolute power in person or through “an architect selected by him.”

It is manifest that this covenant and the similar covenants in the deeds to Dr. Coker’s other grantees were designed to make effectual a desire on the part of Dr. Coker that the external appearances of buildings on lots in the Rocky Ridge Development should harmonize with his aesthetic sense. This being true, the covenant in question was personal to Dr. Coker, and ended when death put out his candle. Jennings v. Baroff, 104 N. J. Eq. 132, 144 A. 717, 60 A.L.R. 1219; Harrington v. Joyce, 316 Mass. 187, 55 N.E. 2d 30; Melfi v. Doscher, 164 S.C. 111, 161 S.E. 859; Allison v. Greear, 188 Va. 64, 49 S.E. 2d 279; 14 Am. Jur., Covenants, section 205; 21 C.J.S., Covenants, section 33.

The notion that the covenant in question was intended to benefit the successors in interest to Dr. Coker or the purchasers of lots in the subdivision ignores the crucial circumstance that it is, in essence, without existence or meaning apart from the brain of Dr. Coker or that of “an architect selected by him.”

The ruling of the presiding judge is sound for another reason. “An agent is one who acts for or in the place of another by authority from him.” 2 C.J.S., Agency, section .1. When he designated Toy as the “architect selected by him” within the purview of the covenant in question, Dr. Coker made Toy his agent, and nothing more. Toy’s authority ended -at Dr. Coker’s death under the rule that the death of the principal terminates the authority of the agent. Parker v. Trust Co., 229 N.C. 527, 50 S.E. 2d 304; Fisher v. Trust Co., 138 N.C. 90, 50 S.E. 592; Wainwright v. Massenburg, 129 N.C. 46, 39 S.E. 725; Duckworth v. Orr, 126 N.C. 614, 36 S.E. 150; Williston on Contracts (Rev. Ed.), section 279; Restatement of tbe Law of Agency, section 120; 2 C.J.S., Agency, section 86.

Eor tbe reasons given, tbe judgment is

Affirmed.