Pepper v. West End Development Co.

211 N.C. 166

• Court: Supreme Court of North Carolina
• Decided: January 27, 1937
• Status: Published

Opinion

Connor, J.

Whatever may be said with respect to the application of the other conditions, restrictions, and covenants contained in the deed from the defendant to Francis Pepper, to lots located and included within West Highlands, Ho. 3, and subsequently conveyed by the defendant to other grantees, it cannot be held that the negative restrictive covenant contained in said deed, with respect to the minimum cost of a residence which may be erected on the lot conveyed by said deed is applicable to any of said lots except that conveyed by said deed. It does not appear upon the face of the deed that the defendant bound itself to impose upon other lots which it should subsequently convey a restriction uniform with the restriction in said deed with respect to the minimum cost of a residence which might be erected on said lots, respectively. The contrary appears, not only from the language of this deed, but also from an inspection of other deeds which the defendant executed both before and after the execution of said deed. Eor this reason, the principle invoked by the plaintiff, as stated in Homes Company v. Falls, 184 N. C., 426, 115 S. E., 184, and restated in Bailey v. Jackson, 191 N. C., 61, 131 S. E., 567 (see 18 C. J., 394), is not applicable in the instant case. See Stephens Company v. Binder, 198 N. C., 295, 151 S. E., 639; Ivey v. Blythe, 193 N. C., 705, 138 S. E., 2; Davis v. Robinson, 189 N. C., 589, 127 S. E., 697.

The evidence offered by the plaintiff for the purpose of showing that the defendant had agreed with Erancis Pepper, 'before the execution of its deed to him, as an inducement to him to purchase the lot described in his deed, that it would include in its deeds for lots located and included within West Highlands, Ho. 3, the identical negative restrictive covenant as that contained in his deed, with respect to the cost of residences which might be erected on said lots, was properly excluded by the court.

A building restriction is a negative easement, and cannot be shown by parol. It is within the statute of frauds. Davis v. Robinson, 189 N. C., 589, 127 S. E., 697.

There is no error in the judgment dismissing this action as of nonsuit. The evidence for the plaintiff failed to show that the defendant, when it conveyed the lot now owned by the plaintiff, covenanted, expressly or by implication, with its grantee, his heirs and assigns, that it would include in all deeds which it might subsequently execute, conveying lots located and included within West Highlands, Ho. 3, a covenant for the benefit of its said grantee, his heirs and assigns, with respect to the minimum cost of residences which might be erected on said lots. For this reason, the judgment is

Affirmed.