Elrod v. Phillips
| Decision Date | 30 November 1938 |
| Docket Number | 526. |
| Parties | ELROD v. PHILLIPS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; G. V. Cowper Special Judge.
Action by J. E. Elrod against D. L. Phillips for specific performance of a contract of lease. Judgment for plaintiff and defendant appeals.
Affirmed.
Where lot located just within boundary of restricted subdivision was restricted to residential use by deed, in order for restriction to have become unenforceable subsequently through changes in surrounding premises, it was not necessary that there be a substantial change in the use of property within the subdivision.
Where lot which was located just within restricted subdivision was restricted by deed to residential use, but surrounding premises outside subdivision were used for business purposes and lot was located at intersection of two heavily traveled roads, restriction was no longer enforceable, and lot could be used for filling station.
This is an action for specific performance of a contract of lease. The plaintlff is the owner of Lot 9 and a part of Lot 10 in the Crescent Heights Subdivision, a real estate development made by Elizabeth Realty Company in 1909, the locus in quo being situated on the northwest corner of Providence Road and Cherokee Road (formerly Vail Avenue). The plaintiff and defendant have entered into a contract wherein the plaintiff agrees to lease the locus in quo to the defendant for a term of five years for the purpose of constructing and operating a filling station thereon, and the defendant agrees to pay the plaintiff $150 per month rent therefor for said purpose. The plaintiff has tendered to the defendant a lease in accord with said contract, but the defendant has declined and refused to accept same or to pay any rent.
The defendant bases his refusal to com ply with the terms of the contract upon the contention that the plaintiff cannot make a valid contract for the rental of the locus in quo as a site for the construction and operation of a filling station. There appears in defendant's brief the following "The defendant concedes that plaintiff is entitled to specific performance of the contract entered into between the parties, and also the contract of lease tendered to the defendant by plaintiff, provided the defendant can use the locus in quo for the purposes set forth in the contract to-wit: a gasoline filling station or other lawful business purpose; otherwise defendant denies that he is liable in any manner to the plaintiff by reason of having executed said contract."
The plaintiff alleges and the defendant admits that:
"2. That the plaintiff is the owner in fee simple of a certain lot in the City of Charlotte, located on the northwest corner of Providence Road and Cherokee Road, as shown and described in Book 930, page 153, in the office of the Register of Deeds for Mecklenburg County, N. C.
3. That certain restrictions were placed on said lot in 1909, and that said lot was deeded by Elizabeth Realty Company to J. F. Shannon and wife, on the 28th day of May, 1914, as shown by a deed recorded in Book 325, page 203, which said restrictions were as follows:
(a) The said lot shall never be owned or occupied by any person or persons of the negro race or with negro blood.
(b) That no house shall be built upon the said lot nearer than 25 feet to the line of the said Vail Avenue.
(c) That the said lot shall be used only for residential purposes.
(d) That no house built on said lot shall cost less than $2,000.00, except the necessary outhouses in connection with the main dwelling house.
4. That after mesne conveyances, said property was conveyed to O. J. Thies by deed recorded in Book 468, page 92, and Book 712, page 276, in said office of the Register of Deeds, and that said O. J. Thies and wife executed deed to the said property to S. J. Dunavant and wife, as shown by Book 898, page 297, in said register's office. That by said conveyance O. J. Thies undertook to add the following restrictions to the said locus in quo:
(e) No houses shall be built upon said lots nearer than 15 feet to the line of lot 11.
(f) No outbuildings shall be built upon the said lots nearer than 90 feet of the line of Vail Avenue or Cherokee Road, or nearer than 75 feet of the line of Providence Road.
That said additional restrictions were not in any manner a part of any uniform plan or scheme of development and are invalid, and that said S. J. Dunavant and wife conveyed said lot by deed recorded in Book 930, page 153, of the Mecklenburg Registry, to J. E. Elrod, plaintiff in this action, subject to all restrictions heretofore mentioned."
His Honor entered the following judgment:
"This cause coming on to be heard at the Extra August 29, 1938, Term of the Superior Court of Mecklenburg County, and a jury trial having been waived by the parties, and it having been agreed that His Honor Judge G. V. Cowper, holding said Court, should hear said cause and decide the issues and questions of fact therein as well as those of law, and said cause having been heard by His Honor without a jury, as agreed by the parties, the Court finds upon the evidence as follows:-
Questions of Fact:
1. That the plaintiff J. E. Elrod is the owner of the lot described in the complaint, and that said lot is situated in a subdivision developed by the Elizabeth Realty Company in the year 1909, plat of which appears of record in Map Book 230, page 24, in the Mecklenburg Registry; that said restrictions were placed upon the said lot limiting it to use for residential purposes as set out in the complaint and admitted in the answer and that later additional restrictions were added to said lot in deed of O. J. Thies and wife to S. J. Dunavant and wife; that at the time said land was originally developed, a large part thereof and plaintiff's lot in particular was far beyond the limits of the City of Charlotte and were sparsely settled. That the additional restrictions were no part of any general plan or scheme of any development.
2. That the locus in quo, being at the extreme southern end thereof, is the most distant of any of the lots in the development from the business district of the City of Charlotte and fronts on Providence and Cherokee Roads; that at the time said land was developed, it was fit only for the residential purposes, the locus in quo being outside of the City limits and there being no other types of property except a few residences in the vicinity; that no structure of any kind has ever been erected on the plaintiff's lot.
3. That about the year 1929, because of extensive growth, the City of Charlotte extended its limits and incorporated within its bounds all of said land, including plaintiff's lot and additional territory for more than a mile beyond;...
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