Bailey v. Jackson-Campbell Co.

• Decision Date: 27 January 1926
• Docket Number: 561.
• Parties: BAILEY v. JACKSON-CAMPBELL CO. ET AL.
• Court: North Carolina Supreme Court

131 S.E. 567

191 N.C. 61

BAILEY v. JACKSON-CAMPBELL CO. ET AL.

No. 561.

Supreme Court of North Carolina

January 27, 1926

Appeal from Superior Court, Buncombe County; Lane, Judge.

Action by Charles R. Bailey against the Jackson-Campbell Company and another. From an order continuing a restraining order to the final hearing, defendants appeal. Affirmed.

Grantee held entitled to enforce restrictive covenants against another grantee acquiring title with notice of them regardless of their omission from some of deeds executed to latter.

The plat of the property referred to herein here follows:

(Image Omitted) The plaintiff is the owner of the two lots numbered 15 and 16. E. W. Grove and wife conveyed No. 15 to W. L. Jenkins by a deed dated April 18, 1923, and No. 16 to Jane Banks Amiss by a deed of the same date. Each deed recites a consideration of $7,500 and is duly registered. The plaintiff acquired title to these two lots by mesne conveyances from the respective grantees. Except as to the pronouns indicating the gender of the grantees, the habendum and restrictive covenants in the two deeds above recited are as follows:

"To have and to hold, the above-described land and premises together with all the privileges and appurtenances thereunto belonging or in any wise appertaining, unto the said party of the second part, his heirs and assigns, forever, subject to the following restrictions, conditions and stipulations, that is to say:

Whereas, the lot or parcel of land hereinbefore described, is a part of a block or boundary of land, as shown on the plat hereinbefore specifically referred to, the property of the parties of the first part, and their assigns, which said land within said block or specific boundary has been divided into parcels or lots, and laid off and designed to be used exclusively for residential purposes, and,

Whereas, the parties hereunto desire, for the benefit of their own property, and for the benefit of future purchasers and owners of the land shown within the lines of said block, that the same shall be developed, and for a time hereafter used exclusively for private residential purposes:

Now, therefore, the said party of the second part, for himself, his heirs, executors, administrators and assigns, doth covenant to and with the said parties of the first part, their heirs, executors, administrators and assigns, as follows:

1. That they will not erect, license or suffer to be erected, or maintained, on the above described land, or any part thereof, any commercial or manufacturing establishment, or factory, or tenement, or apartment house, or house designed for use by more than one family, or house or building to be used as a sanitarium or hospital of any kind, or, at any time use or suffer to be used, any house or building erected thereon, for any such purpose, or any purpose whatsoever, which may be in any way noxious or offensive to the neighboring inhabitants; that said premises shall not, during the term of twenty-one (21) years, be used for any purpose other than the construction and maintenance of private residences thereon, and during said term, shall be kept, used and maintained in good condition, and in general harmony with the surrounding property within said block. * * *

2. Subject also, as to that part of said lot within the boundaries of what is known as Norwood Park, to all the restrictions, conditions and stipulations, contained and set forth in the deed of the Central Development Company, conveying the same, reference to which said deed, and record thereof, being hereby made for a full recital of said restrictions, conditions and stipulations.

3. That the foregoing covenants shall be covenants running with the land, and shall be kept by the party of the second part, his heirs and assigns, forever."

As we understand, subsection 2 was inserted because the plaintiff derived title to the western portion of his lots from the Central Development Company and to the eastern portion thereof from E. W. Grove.

The plaintiff alleges that the defendants have accepted deeds from said Grove for lots 1, 2, 8, 9, and 10, containing similar covenants and are barred thereby.

On February 21, 1916, the Central Development Company conveyed to Herbert W. Pelton and his wife, Sarah B. Pelton, the lot adjoining the lands of the plaintiff on the north, facing about 96 feet on Virginia avenue and running back 120 feet to lot 17; and on February 11, 1924, said Herbert W. Pelton conveyed his interest therein to Sarah B. Pelton. It is alleged that Sarah B. Pelton holds her title to said lot subject to the habendum and restrictive covenants in the deed from the Central Development Company to Herbert W. Pelton and wife, which are as follows:

"To have and to hold the above-described land and premises, together with all the rights and appurtenances thereunto belonging, or in any wise appertaining, unto the said party of the second part, her heirs and assigns, forever, subject to the restrictions, conditions and stipulations hereinafter set out, to wit:

The said party of the second part, for herself and her heirs, executors, administrators and assigns, do hereby covenant and agree with the said party of the first part, its successors and assigns, as follows:

1. That she will not erect or suffer to or license to be erected on the land above described, any commercial or manufacturing establishment or factory, or house 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; that she will not erect or suffer to be erected on said land any residence to cost less than $2,500; that in building on said land she will build on the building line 20 feet from the street, as shown and indicated on the said plat hereinbefore referred to, and face or front said house on Virginia avenue; that she will not build more than one residence on either lot of said land, but may build thereon a garage or stable, in keeping with the premises and residence built thereon, and of sightly appearance; that she will not during the term of twenty years from the date thereof sell or convey said land or any part thereof to a negro or person of any degree of negro blood, or any person of bad character.

2. That the foregoing covenants shall be covenants running with the land and shall be kept by the party of the second part, her heirs and assigns, forever."

The plaintiff alleges that these restrictive covenants in substance and effect are the same as those which affect the title of the plaintiff to that portion of lots 15...