Higdon v. Jaffa Et Ux, 533.

• Decision Date: 14 December 1949
• Docket Number: No. 533.,533.
• Citation: 56 S.E.2d 661,231 N.C. 242
• Court: North Carolina Supreme Court
• Parties: HIGDON et al. v. JAFFA et ux.

56 S.E.2d 661

231 N.C. 242

HIGDON et al.

v.JAFFA et ux.

No. 533.

Supreme Court of North Carolina.

Dec. 14, 1949.

Mrs. Gertrude Higdon and husband, E. R. Higdon, on behalf of themselves and all other owners of lots in the subdivision of Myers Park in the City of Charlotte, Mecklenburg, who may come in and be made parties plaintiff, sued Ben Jaffa and wife, Blanche Jaffa, to enjoin defendants from erecting a business or commercial structure on an adjacent lot in violation of restrictive covenants in deeds limiting the use of the lot to residential purposes.

The Superior Court, Mecklenburg County, George B. Patton, Special Judge, rendered judgment for the defendants, and plaintiffs appealed.

The Supreme Court, Ervin, J, reversed the judgment, and held that the evidence was sufficient to sustain a finding that the restrictive covenants were placed in the deeds pursuant to a general plan to develop the subdivision as a restricted residential community so that they could be enforced, and the fact that surrounding property was used for business purposes did not alter the character of the subdivision itself.

[COPYRIGHT MATERIAL OMITTED.]

This is a civil action in which the plaintiffs, as owners of Lot No. 17 in Block 11-C of a certain subdivision in Myers Park in Charlotte, North Carolina, seek to enjoin the defendants from erecting or maintaining upon an adjoining lot, i. e. Lot No. 16 in Block 11-C of such subdivision, "any business or commercial structure whatsoever" on the theory that applicable restrictive covenants limit the use of such adjoining lot to residential purposes.

To sustain their claim to the relief sought, the plaintiffs presented testimony of the matters and things set forth below.

On June 24, 1924, the Stephens Company, a corporation, subdivided a tract of land in Myers Park in Charlotte, which it owned in fee, into 37 building lots, whose irregular shapes and comparatively large sizes rendered them more suitable for residential purposes than for business uses. In so doing, the Stephens Company virtually bi sected the property from east to west by a passage named Henley Place, which it dedicated to public use. Such dedication was accepted by the City of Charlotte, which maintains Henley Place as one of its public streets. Henley Place intersects with three other thoroughfares, to-wit, Baldwin Avenue, East Morehead Street, and King's Drive, at the western boundary of the tract. The Stephens Company designated the 20 lots of the subdivision lying north of Henley Place as Block 11-D, and the 17 lots of the subdivision situate south of Henley Place as Block 11-C. Lot No. 16 of Block 11-C abuts upon the intersection of Baldwin Avenue, East Morehead Street, Henley Place, and King's Drive. It is bounded on the east by Lot No. 17 of Block 11-C, which fronts on Henley Place alone.

The Stephens Company caused a map of the subdivision, which it styled a "plat of Blocks 11-C and 11-D, Myers Parks, Charlotte, N. C, " to be registered in the office of the Register of Deeds of Mecklenburg County, and sold all of the 37 lots in the subdivision to various grantees by recorded conveyances describing the property by reference to the recorded map.

All of the deeds from the Stephens Company to the original purchasers of the 37 lots of the subdivision prescribe in unvarying phraseology that "the property shall be used for residential purposes only"; that "nothing herein contained shall be held to impose any restrictions on or easements in any land of the Stephens Company not hereby conveyed"; and that "no apartment house shall be erected on the lot hereby conveyed." The deeds expressly state, however, that the term "apartment house" shall be construed to mean "any building designed to house more than two families." The conveyances also contain additional "covenants, conditions, and restrictions" regulating the number of residences to be erected on the lots; that building lines of residences, outbuildings, and fences; the height and cost of residences; and the height of fences. They specifically state that "no sign boards of any description shall be displayed on the property, with the exception of signs 'for rent', which signs shall not exceed 2X3 feet in size."

Each deed from the Stephens Company to a purchaser expressly recites that the property therein described is conveyed subject to the specified restrictions on its use, which the parties to the instrument stipulate "shall be covenants running with the land" and which the grantee, acting "for himself, his heirs and assigns, hereby covenants and agrees to perform and abide by."

Lot No. 17 of Block 11-C was originally transferred to A. I. Henderson by the Stephens Company on September 1, 1925, by a duly registered deed containing the restrictions on use heretofore set out, and passed to the feme plaintiff, Mrs. Gertrude Higdon, in 1937 under mesne conveyances from Henderson. The plaintiff, E. R. Higdon, unites in this action in his character as husband of the feme plaintiff.

The defendants, Ben Jaffa and his wife, Blanche Jaffa, deraign title to Lot No. 16 of Block 11-C under the following recorded instruments: (1) Deed from Mrs. Sophia Goodman to the defendants, dated March 26, 1937; (2) deed from Home Real Estate and Guaranty Company to Mrs. Sophia Goodman, dated October 30, 1930; (3) deed from G. O. Doggett to Home Real Estate and Guaranty Company, dated April 6, 1926; and (4) deed from the Stephens Company to G. O. Doggett, dated March 25, 1926. The deed from the Stephens Company to Doggett contains the restrictions on use heretofore described, and the deed from Doggett to Home Real Estate and Guaranty Company recited that the property is conveyed subject to the restrictive covenants set out in the deed from the Stephens Company to Doggett. The last two instruments in the chain of title of the defendants do not refer to the restrictions.

After it had sold all of the lots in the subdivision by registered deeds containing the restrictions, the Stephens Company reacquired Lots Nos. 1, 2, and 3 of Block 11-D under mesne conveyances from those who had formerly purchased such lots from it.

The deed from the Stephens Company to A. I. Henderson contains a restrictive covenant bearing the number 9 and reading as follows: "The Stephens Company, its successors or assigns, shall have the right to change, alter or close up any street or avenue shown upon said map not adjacent to the lot above described and not necessary to the full enjoyment by the party of the second part of the above described property, and shall retain the right and title to, and control of all streets and avenues within the boundaries of Myers Park, subject only to the rights of the party of the second part for the purposes of ingress and egress necessary to the full enjoyment of the above described property." It does not appear that this provision is in any other deed. Moreover, the deed from the Stephens Company to G. O. Doggett has an eighth restrictive covenant in these words: "No part of the property shall be used for agricultural purposes except the part set aside as service premises, which shall not be nearer any street than seventy-five feet." This clause does not appear in any of the conveyances in the plaintiffs' chain of title.

Many proprietors have erected substantial and valuable dwellings "up and down Henly Place" on lots shown on the recorded map of the subdivision. Nearly all of these structures have two stories, and most of them are of brick construction. Some are duplex or two-family houses. A few of them are rented. "There are no business properties on any of the lots shown on the may of Blocks 11-C and 11-D, only residential."

The plaintiffs have erected a substantial duplex dwelling on Lot 17 of Block 11-C. They reside in one side of it, and rent the other.

Lot No. 16 of Black 11-C is vacant. The defendants concede, however, that they are preparing to erect a store building thereon and to lease it to third persons for merchandising purposes, and that they will do so unless precluded by decree in this action.

The plaintiffs entered into two stipulations at the trial at the request of the defendants. In the first stipulation, they admit that the Stephens Company had established other subdivisions in Myers Park; that one of these other subdivisions was located just across East Morehead Street from the lot of the defendants; that the Stephens Company had sold lots in suchother subdivision for commercial purposes; and that the purchasers of such lots had erected various types of business-buildings thereon, and were devoting them to sundry commercial enterprises. The second stipulation recites that the increase of vehicular traffic along Baldwin Avenue, East More-head Street, Henley Place, and King's Drive since the plaintiffs and the defendants bought their respective lots in Block 11-C of Myers Park has necessitated the installation of a traffic circle at the intersection of such streets "to slow up and regulate traffic."

Furthermore, the court allowed the defendants to cross-examine the plaintiff, E. R. Higdon, as "to conditions and changes in the territory outside of the subdivision shown on the map" of Blocks 11-C and 11-D of Myers Park. The plaintiffs reserved exceptions to the testimony elicited by such cross-examination.

After the plaintiffs had offered their evidence and rested their case, the court sustained the motion of the defendants for a compulsory nonsuit under G.S. § 1-183, and entered judgment accordingly. The plaintiffs excepted and appealed, assigning the entry of the nonsuit and the admission of the evidence as to conditions and changes in the territory outside the subdivision as error

James L. DeLaney, Charlotte, for plaintiffs-appellants.

Charles W. Bundy, Charlotte, Sol Levine, Charlotte, and Arthur Goodman, Charlotte, for defendants-appellees.

ERVIN, Justice.

The primary question presented by this appeal is the propriety of the compulsory nonsuit

It is well settled...