Davis v. Robinson

• Decision Date: 06 May 1925
• Docket Number: 462.
• Citation: 127 S.E. 697,189 N.C. 589
• Parties: DAVIS ET AL. v. ROBINSON ET AL.
• Court: North Carolina Supreme Court

127 S.E. 697

189 N.C. 589

DAVIS ET AL. v. ROBINSON ET AL.

No. 462.

Supreme Court of North Carolina

May 6, 1925

Appeal from Superior Court, Mecklenburg County; Shaw, Judge.

Action by R. J. Davis and others, suing on behalf of themselves and all other parties owning lots in Piedmont Park, in the City of Charlotte, who may come in and be made parties plaintiff against Frank E. Robinson and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Restrictive covenant must be created by registered instrument to constitute notice of restriction.

Action by R. J. Davis and others, on behalf of themselves, and all other parties owning lots in Piedmont Park, in the city of Charlotte, who may come in and be made parties plaintiff against Frank E. Robinson and others, including J. M Haralson and Keely A. Grice, partners as "D. H. & G Service Stations." Judgment for defendants, and plaintiffs appealed. Affirmed.

The plaintiffs alleged that they owned certain parcels of land in a development known as "Piedmont Park," now in the city of Charlotte; that they purchased these parcels under deeds containing restrictions "against the erection of any structure except houses to be used for residential purposes only, costing certain amounts therein mentioned and necessary outhouses."

Piedmont Park was originally an 86-acre tract of land, purchased by F. C. Abbott in 1900. A corporation, Piedmont Realty Company, was formed, and this land conveyed to it and then developed into lots, streets, and avenues; and a map showing lots, blocks, streets, avenues, and alleys was made and spread upon the records in the office of the register of deeds for Mecklenburg county.

After conveying to purchasers 129 1/2 lots (121 1/2 with and 8 without restrictions), the Piedmont Realty Company conveyed to F. C. Abbott, without restrictions, 136 1/2 lots. Another corporation, Suburban Realty Company, was then organized, and it took the title to the 136 1/2 lots without any restrictions in its titles. The first conveyance of lots by the Piedmont Realty Company was in October, 1900, and its last in April, 1909, when it conveyed to Gustav Oelkers the locus in quo, without restrictions, and a residence had been erected thereon by the Piedmont Realty Company.

At the time of the aforesaid conveyance to F. C. Abbott, by the Piedmont Realty Company, 117 1/2 lots had been conveyed to sundry purchasers by the Piedmont Realty Company with restrictions, and 6 lots had been so conveyed without restrictions.

The Suburban Realty Company made maps of its said purchase and other added blocks, and spread same on record in the office of the register of deeds of Mecklenburg county. The Suburban Realty Company conveyed all the F. C. Abbott 136 1/2 lots and 40 other lots added by it thereto from other contiguous lands, referring to its map and subject to restrictions, practically the same as those contained in the Piedmont Realty Company deeds.

Before Piedmont Realty Company conveyed the locus in quo to Gustav Oelkers, both of said realty companies had conveyed to sundry purchasers 164 1/2 lots by deeds, with restrictions, and 142 1/2 lots, by deeds without any restrictions, whatever.

Certain deeds, called "secondary conveyances," by the parties, because they were quitclaims, corrective deeds, releases, and reconveyances, were executed, some with and some without restrictions. These restrictions, in so far as they are material, provided: That no owner of said real estate shall, at any time hereafter, erect upon said real estate any structure except a dwelling house which shall cost not less than a specific amount, and no owner shall permit any building erected thereon to be used for other purposes than dwelling and necessary outhouses--

"The party of the first part reserves to itself all parks, streets and avenues, laid out on the map aforesaid, with the right to dispose of same as it may see fit, provided, however, that no alley or street over which the right of way is expressly granted herein shall be closed or materially altered; and the party of the first part reserves to itself all of rights and easements appurtenant to the said property known as Piedmont Park which are not herein expressly granted."

Some of the plaintiffs hold by mesne conveyances under the Piedmont Realty Company, and the others by mesne conveyances under the Suburban Realty Company.

The defendant F. E. Robinson holds the locus in quo by mesne conveyances under the Piedmont Realty Company through Gustav Oelkers, and in his chain of title no restrictions appear. And defendants Haralson and Grice hold by lease under defendants Robinson. The defendants Haralson and Grice leased a part of the locus in quo for use as a "filling station." They desired to sell gasoline and other merchandise used in operating automobiles. The plaintiffs instituted this action for injunctive relief against this business enterprise and to have declared effective against the locus in quo the restrictive negative easements, or covenants applying to their lots, as set out in their deeds. They alleged that the restrictive provisions were omitted from these deeds by inadvertence, or the mutual mistake of the parties to the first conveyance from the Piedmont Realty Company, and that each subsequent grantee took with notice and full knowledge of this omission. They further alleged that the whole development of Piedmont Park was the result of a "general scheme or plan" to preserve and maintain "Piedmont Park" as a strictly residential community or neighborhood. The defendants denied these allegations and pleaded the express provisions of plaintiffs' deeds and their own deeds, and that they were purchasers for value, without notice or knowledge of any such rights of the plaintiffs as against them. They further alleged that the registered conveyances themselves negatived any general purpose to restrict the lots in Piedmont Park, for that many were sold without restrictions, and that the unrestricted lots were so scattered as to evince a lack of any general plan to restrict all the lots in their use.

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The plaintiffs offered the testimony of F. C. Abbott: That he is a real estate dealer in Charlotte of some 27 years' experience, and that he, with others, bought the property now called Piedmont Park, for the purpose of development, then organized the Piedmont Realty Company, a corporation, and conveyed this land to it. That he had a scheme or plan for its development as a residential section, except that they were supposed to have a community store on lot No. 1, in block 20, and all the remainder was to be residential. That the Piedmont Realty Company had a deed printed to carry out this plan, containing these restrictions. That he was connected with the Piedmont Realty Company until the latter part of 1905. Abbott and Stephens were selling agents for this property. Whenever this question was raised with purchasers, that he told them that it was limited to residential uses, except the store corner lot. The restriction is a valuable property right. That he repurchased all the unsold lots of the Piedmont Realty Company January 29, 1906. The deed from Piedmont Realty Company to F. C. Abbott conveyed 136 1/2 lots in Piedmont Park, and was not made on the printed forms, and contained no restrictions or reservations. That, for the purpose of turning these over to a new company to proceed with the same development, he organized the Suburban Realty Company and deeded the entire property to them a few days after his deed from the Piedmont Realty Company, which deed contained no restrictions or reservations. He said it was his purpose to convey this property to the Suburban Realty Company, and continue to develop or sell the lands according to the original plan he had first adopted by the sale of lots for the Piedmont Realty Company. A new deed was printed for the Suburban Realty Company, containing practically the same restrictions as in the printed form of deed used by the Piedmont Realty Company. That lots Nos. 1 and 2, in Block 8, purchased by Gustav Oelkers, constituted a most important approach to this entire property, and that the Piedmont Realty Company built on this property in 1903 or 1904, under his supervision, a good residence and had the yard graded, shrubbery set out according to a landscape architect, and had a hedge around the property; this hedge surrounded both lots. Piedmont Realty Company sold its last lot in Piedmont Park some time in 1924. "As far as I knew, I gave to Dr. Austin the same facts I did to other buyers." The Austin deed from Piedmont Realty Company contains this restriction:

"It is understood and agreed also that the first building to be erected on lot No. 1 shall be a dwelling house, costing not less than $1,500.00."

The deed from Piedmont Realty Company to F. C. Abbott, October, 1900, not on printed form, but contains the following restrictions:

"It is to be further understood and agreed that the lots fronting on Central avenue and Seventh street are to be used for residential purposes only."

Witness built his residence on one of these lots.

Another deed was executed to the Louise Mills, with no restrictions in it.

D. L Probert, for plaintiffs, testified that it was represented to him that this was to be a residential district, with a store on one of the corners to supply the needs in that section; that such representation was an inducement to him to buy a lot and use it for a home. He further testified that the "filling station" is operated every day in the week and late as 10 o'clock at night, including Sunday, and to other objectionable phases as to the "filling station." That the Piedmont Grocery Company is less than 300 feet from Sugar Creek, and the...