Brenizer v. Stephens

• Decision Date: 26 November 1941
• Docket Number: 528.
• Citation: 17 S.E.2d 471,220 N.C. 395
• Parties: BRENIZER et al. v. STEPHENS et al.
• Court: North Carolina Supreme Court

17 S.E.2d 471

220 N.C. 395

BRENIZER et al. v. STEPHENS et al.

No. 528.

Supreme Court of North Carolina

November 26, 1941

This proceeding was brought by plaintiff to have removed certain restrictions upon the use of her property occurring in her own deed and mesne conveyances under which she holds principally those requiring it to be used for residential purposes. She alleges such an encroachment of business in the neighborhood and adjacent area as to have destroyed or defeated the purpose of the restrictions and render their further observance or enforcement without object, oppressive and inequitable. In this she is opposed by owners of other property, contiguous, adjacent, and neighboring that of the plaintiff, and held under substantially identical restrictions, uniform in the area described in the pleadings in which the owners derived their title from a common source with which the restrictions originated.

The suit was brought against certain named persons owning property within the area and "any other persons who may claim any interest in any of the lots shown upon the map recorded in Book 230, p. 128, in the Mecklenburg County North Carolina, Registry", that being a map of the development containing plaintiff's lot, and the lots of numerous others held under deeds containing similar restrictions. When the case came on for hearing, many such persons, some seventy-five or more, had become parties defendant.

The facts may be summarized: Some time in the year 1911 the defendant George Stephens owned a large part of the area included in the map above referred to, and the Stephens Company, a corporation, of which George Stephens was president and manager, owned the rest. Together the holdings form an extensive area, known as "Blocks No. 7 and 9 of Myers Park", at present occupying the territory bounded by Providence Road, Hermitage Road, Granville Road and Hopedale Avenue. The blocks are separated by Queens Road. This area was subdivided into numerous lots fronting on the streets named, and many of them were sold and are now owned or occupied by a great number of persons, including the defendants.

Intending to provide a section to be used exclusively for residential purposes, and thereby add to the ease, security and comfort of those who bought for that purpose, as well as to make the development more attractive to purchasers, the promoters, George Stephens and the Stephens Company, sold these lots and conveyed by deeds which, without exception, contain restrictions that they should be used only for residential purposes, and defendants and other owners and occupants, either directly or through mesne conveyances, hold their lots upon this condition, and assert that they bought with regard to the security and protection afforded them by similar restrictions in all other deeds to property within the area.

Plaintiff's lot is located on the corner of Block 7, where Hopedale Avenue, Queens Road and Providence Road come together --at the apex of the block.

The evidence discloses that opposite the block, along the other side of Providence Road, a very considerable business development has taken place, including a miniature golf course, store, soda shop, beauty parlor, automobile service station, Sinclair filling station, meat market, grocery stores, and other business establishments, including a considerable quota of filling stations. Within the territory described as Blocks 7 and 9, Myers Park, including the property of plaintiffs and defendants, that being the territory restricted to residential use, there has been no violation of the restrictions imposed in the deeds, and none of the property has been used for other than residential purposes.

The plaintiffs claim that the business development along Providence Road, outside of the area, has destroyed the purpose of the restriction to residential use, and furnishes equitable ground for its annulment.

On the hearing the trial judge intimated that he would not hear testimony or evidence with regard to business developments outside the area protected by the restrictions in the deeds, and across Providence Road. On this intimation, the plaintiffs submitted to nonsuit and appealed.

Taliaferro & Clarkson, of Charlotte, for plaintiffs-appellants.

Cochran & McCleneghan, Whitlock, Dockery & Shaw, and Cansler & Cansler, all of Charlotte, for defendants-appellees.

SEAWELL Justice.

The plaintiffs have raised some fundamental questions as to the rights of certain defendants to enforce the restrictions in the deeds, whether the covenants are personal, or run with the lands, and as to the separate consideration of the several subdivisions in Myers Park. The exigencies of decision do not require their discussion since there are defendants in the action whose legal and property interests are involved in the controversy and will be affected by the judgment rendered.

Applicable to the situation disclosed by the evidence, the general law is succinctly stated in 26 C.J.S., Deeds, pp. 548, 549, § 167: "Where the owner of a tract of land subdivides it and sells distinct parcels thereof to separate grantees, imposing restrictions on its use pursuant to a general plan of development or improvement, such restrictions may be enforced by any grantee against any other grantee, either on the theory that there is a mutuality of covenant and consideration, or on the ground that mutual negative equitable easements are created. The doctrine does not depend on whether the covenant is to be construed as running with the land." Similar statements are found in Tiffany, Real Property, 3d Ed., vol. 3, p. 501, sec. 867, and Thompson Real Property, Perm.Ed., vol. 7 pp. 49, 88, secs. 3567, 3605.

The law so stated is recognized in practically all of the United States, and is the law of this state. Johnston v. Garrett, 190 N.C. 835, 130 S.E. 835; Franklin v. Elizabeth Realty Co., 202 N.C. 212, 217, 162 S.E. 199, 201. This is not disputed in the present case, nor is it denied that Block 7 in the Myers Park development, where plaintiff's lot is located, is a development of the kind and character to which the law applies and that the territory is uniformly covered by deeds containing, amongst other covenants, restrictions that the property shall be used only for residential purposes. The question for decision is whether evidence of business changes and developments along Providence Road, outside of the covenanted area, when none have occurred within the area, is available to plaintiffs in support of their demand that the restrictions in their deed be removed or declared inoperative because of radical changes affecting the property, which have defeated the purpose of the restrictions and rendered their enforcement inequitable.

The plaintiff bases her cause of action entirely on changes of condition along Providence Road outside of the Myers Park subdivision in which she, and others who have been made parties, own lots affected with the restriction, universal in that area, that these lots shall be used only for residential purposes. The exception to the exclusion of evidence of these business developments, of various kinds, on Providence Road outside of the covenanted area being under review, the right of plaintiff to rely on the facts so shown in her demand for equitable relief should be considered. If she could not do so, the evidence is irrelevant, and its exclusion proper.

The unmistakable weight of authority in this country answers this question in the negative, 26 C.J.S., Deeds, p. 576, § 171 and cases cited, and that had been the interpretation of opinion in this state, see McLeskey v. Heinlein, 200 N.C. 290, 156 S.E. 489 and Franklin v. Elizabeth Realty Co., 202 N.C. 212, 162 S.E. 199; but plaintiffs contend that Elrod v. Phillips, 214 N.C. 472, 199 S.E. 722, and Bass v. Hunter, 216 N.C. 505, 5 S.E.2d 558; have established a contrary holding. The defendants, however, point out that both of these cases were "friendly suits", in which both plaintiff and defendant were interested in the removal of the restrictions, and that all of the facts were not brought out as they would have been...