Collins v. Asheville Land Co.
| Decision Date | 07 June 1901 |
| Citation | 39 S.E. 21,128 N.C. 563 |
| Parties | COLLINS et al. v. ASHEVILLE LAND CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Buncombe county; Allen, Judge.
Action by H. T. Collins and others against the Asheville Land Company to enjoin the closing of certain streets. From a judgment for plaintiffs, defendant appeals. Affirmed.
Where an improvement company laid off land into numbered city lots and streets, making a plat thereof, and sold lots as marked and numbered on the plat, with reference thereto in the deeds, such acts constituted an irrevocable dedication of the streets in favor of purchasers of the lots against the improvement company's successors in interest, who had notice of the plats and sales made thereunder, though no registration of the plat was made.
Zebulon Weaver, for appellant.
Bourne & Parker, for appellees.
The Southern Improvement Company, a duly-organized corporation received a deed in February, 1886, from J. M. Tierman, to a certain piece of land adjoining the city of Asheville, and at once executed a mortgage upon the land to the Central Trust Company of New York as security for certain bonds. A sale was provided for in the mortgage in case of default in the payment of interest or principal of the bonds; and it was further provided that until default the Southern Improvement Company should have the full right to contract for the sale or lease, subject to the lien of the mortgage, of any of the lands at such prices and upon such terms as that company might deem fair and reasonable, and upon such sales the Central Trust Company would sufficiently convey by deed or deeds of release the lands so sold from the operation of the mortgage, so that the purchaser might get a title free from incumbrance, the proceeds of the sale to be paid to the trust company, and to be used in purchasing the bonds at par, with the accrued interest, and to retire the same. After the execution of the mortgage, and in the same year, the improvement company had the land laid off into city lots (numbered) and streets, and a plat thereof made, upon which certain portions were platted and distinguished as streets and others as lots. Afterwards the improvement company offered the lots, exhibiting the plat at the same time, for sale, and did sell to various persons lots marked and numbered on the plat; and in the deeds the grantors made special reference to the plat, and the lots were described as abutting on certain named streets, and as being of certain numbers corresponding with the plat. The trust company according to the agreement in the mortgage, executed releases to the improvement company for the lots so sold, with recitals in each as to the mortgage, the agreement to release, and describing the lots in the releases in the same words as those in the deeds from the improvement company. In 1892, the improvement company executed a second mortgage upon the unsold part of the same land to George S. Scott and Harris C. Fahnestock for the security of certain bonds; and in 1896, in a consolidated suit, the trust company and Scott and Fahnestock joining as plaintiffs, a decree of foreclosure was entered for the sale of the property except those parts which had been sold off; the lots which had been sold to the plaintiffs in this action being among those excepted in the decree. Fahnestock, who was a director of the improvement company, purchased at the foreclosure sale, and the sale was confirmed by the court. Fahnestock, after selling some of the lots represented on the plat and described as abutting on streets named on the plat, sold and conveyed to T. L. Durham all the property except the lots which had been sold off, and excepting also certain streets shown on the plat which he had made at the time of the sale to Durham. Durham afterwards conveyed the property to its present owner, the Asheville Land Company, defendant in this suit. Durham and the Asheville Land Company knew at the time of their purchases of the existence of the plat made by the Southern Improvement Company, and of the sales made thereunder.
The principle of law involved in this case is, we think, the same as that in Conrad v. Land Co., 126 N.C. 776, 36 S.E 282. The inconvenience and loss which may arise here from the enforcement of that principle of law will be greater than it was in that case, but that argument would not be allowed to influence us in our decision. The courts of the states in which the question before us has been presented and decided are divided. In some jurisdictions it has been held that, where lots have been sold by reference to a plat representing a division of a large tract of land into subdivisions of streets and lots, like the one before us, the purchaser of a lot does not acquire a right of way over every street laid down upon the plat. Pearson v. Allen, 151 Mass. 79, 23 N.E. 731. There the court said in support of its position: "In Regan v. Gaslight Co., 137 Mass. 37, it was held that the defendant could close a whole series of streets on the plat, leaving open the private ways adjoining the plaintiff's lots to the highway in one direction, and to the next side street in the other." In other courts it is held that a map or plat, referred to in a deed, becomes a part of the deed as if it were written therein, and that, therefore, the plan indicated on the plat is to be regarded as a unity, and the purchaser of a lot acquires a right to have all and each of the ways and streets on the plat or map kept open. This view is so well and clearly stated in Elliott, Roads & S. § 120, that we quote it: ...
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