Chappell v. Winslow

• Decision Date: 26 July 1944
• Docket Number: No. 5250.,5250.
• Citation: 144 F.2d 160
• Parties: CHAPPELL v. WINSLOW.
• Court: U.S. Court of Appeals — Fourth Circuit

144 F.2d 160 (1944)

CHAPPELL v. WINSLOW.

No. 5250.

Circuit Court of Appeals, Fourth Circuit.

July 26, 1944.

R. Clarence Dozier, of Elizabeth City, N. C., for appellant.

Whedbee & Whedbee, of Hertford, N. C., for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from a judgment for defendant in an action to recover damages for breach of an agreement restricting the use of land. The judgment was rendered upon a stipulation as to the facts which are as follows:

On July 6, 1929, one Josiah Winslow conveyed to the defendant J. E. Winslow a half acre tract of land in Perquimans County, North Carolina, this half acre being cut off from a thirty acre tract, the remainder of which was retained by Josiah Winslow. On the same date J. E. Winslow executed and delivered to Josiah Winslow a written agreement to the effect that, if he should decide to sell the half acre conveyed to him, he would give Josiah Winslow the refusal thereof, and that he would not erect any building other than a filling station on the property without the permission of Josiah Winslow. That agreement, contained in a paper writing separate from the deed, is as follows:

"This agreement made this day between Josiah Winslow and J. E. Winslow the said J. E. Winslow agrees to give Josiah Winslow refusal if he decides to sell land and improvements this day bought of Josiah Winslow, and that he will not erect any other building except a filling station on the property without the permission of Josiah Winslow. This the 6th day of July, 1929. J. E. Winslow."

In the following year, Josiah Winslow conveyed the remainder of the 30 acre tract to the plaintiff, J. A. Chappell, by deed which contained as one of its provisions the following attempted assignment of rights under the agreement with J. E. Winslow, viz.:

"And it being further understood that the agreement between J. E. Winslow, et als., and Josiah Winslow shall continue in full force and effect and the benefits of said agreement in favor of Josiah Winslow being transferred and assigned to Julian A. Chappell".

Some ten years later, J. E. Winslow erected a garage on the land and after its erection obtained from Josiah Winslow a statement in writing to the effect that he had no objection thereto. This action was subsequently instituted to recover damages for the erection of the garage; and judgment was entered for defendant on the ground that the agreement relied on by the plaintiff did not run with the land and furnished plaintiff no ground for recovery.

We think that this judgment was clearly right. There is nothing whatever in the record tending to show that the agreement relied on was intended to inure to the benefit of the land or those who might subsequently acquire it. On the contrary, the language of the agreement itself shows that it was entered into for the personal benefit of Josiah Winslow. It will be noted that the restrictive agreement with respect to the erection of buildings is coupled with an agreement to give Josiah Winslow the refusal of the property if J. E. Winslow should decide to sell it, and that the restrictive agreement is not an agreement in general terms not to erect buildings of a certain type on the property, but not to erect any building except a filling station without the permission of Josiah Winslow. The "refusal" provided for was certainly for the personal benefit of Josiah Winslow and not for the benefit of the land or subsequent owners; and the restrictive agreement is not only a coordinate agreement and presumptively of the same character (noscitur a sociis) but it is also made dependent upon the personal permission of Josiah Winslow. The clear intention is that, so long as Josiah Winslow should remain the owner of the remaining portion of the 30 acres, he should have the refusal of the half acre tract if J. E. Winslow should decide to sell it and should have the power of controlling what sort of buildings should be built upon that property. There is a total absence of circumstances which would tend to show an intention that the restrictive agreement was for the benefit of the land retained by Josiah Winslow and those to whom he might subsequently convey it, such as sale with reference to a subdivision or specific limitations upon the kind of structure that might be built upon the property or the uses that might be made of it. The rule applicable is well stated in 14 A.J. pp. 651, 652, where it is said:

"The right of a person not a party to a restrictive covenant to enforce it depends upon the intention of the parties in imposing it. In order to confer such right upon one other than a party to the agreement, it must appear that it was the intention of the covenantee to create a servitude or right which should inure to the benefit of the land acquired by the plaintiff and should be annexed to it as an appurtenance, or, as sometimes expressed, that it was intended to operate as between subsequent grantees.

"An owner of land in conveying part of the same may impose restrictions upon the part conveyed for his own personal benefit. Restrictions which are merely personal to the grantor cannot be enforced by subsequent grantees of the land. * * *

"When a restrictive agreement will be regarded as a personal covenant and when as one creating a right which passes with the land to a purchaser thereof is a question which cannot be answered categorically. The determinative factor is, as above stated, whether it was intended for the benefit of the...