Hugh Macrae & Co. Inc v. Shew Et Ux, 598.
| Decision Date | 10 December 1941 |
| Docket Number | No. 598.,598. |
| Citation | 220 N.C. 516,17 S.E.2d 664 |
| Court | North Carolina Supreme Court |
| Parties | HUGH MacRAE & CO., Inc. v. SHEW et ux. |
Appeal from Superior Court, New Hanover County; J. J. Burney, Judge.
Suit for an injunction by Hugh MacRae & Company, Incorporated, against Richard A. Shew and wife. From an adverse judgment, defendants appeal.
Modified, and as modified affirmed.
Rountree & Rountree and Harriss Newman, all of Wilmington, for plaintiff, appellee.
J. A. Jones, of Kinston, for defendants, appellants.
This is an action to enjoin the defendants from building, constructing or maintaining a street, road or avenue over Lot 811, in a subdivision of land known as Magnolia Place, Cul-de-Sac Section, in alleged violation of restrictions in the deed from the plaintiff to the grantor of the defendants.
The plaintiff subdivided a tract of land into lots, which it sold to purchasers for building purposes. The lot involved faced a cul-de-sac leading off from State Highway No. 74, between Wilmington and Wrightsville. The deed from the plaintiff conveying this lot to the defendants' grantor contained among other restrictions the following: Deeds from the plaintiff to other grantees for other lots fronting on the same cul-de-sac contained similar restrictions. The plaintiff still owns yet other lots fronting on the cul-de-sac.
The defendants own a tract of 18 acres of land south of and contiguous to said Magnolia Place, Cul-de-Sac Section. The defendants purchased and took title from one Donnell, who had taken title thereto from the plaintiff, said Lot No. 811, in Magnolia Place, Cul-de-Sac Section. The deed from Donnell to the defendants contained no restrictions.
The defendants admit their intention to construct and have actually begun the construction of a street or roadway through said Lot No. 811, thereby connecting his 18-acre tract to the end of the cul-de-sac and over the cul-de-sac to the State Highway No. 74.
The question posed by the pleadings, evidence and admissions is: Is the construction and maintenance of a road, street or highway over said Lot No. 811 a violation of the restrictions contained in the deed conveying the lot from the plaintiff to Donnell, and, if so, were such restrictions covenants running with the land, and therefore binding upon the defendants, who claim through Donnell by deed which contains no such restrictions? And, further, if such restrictions are binding upon the defendants do they exist for the protection of the plaintiff, who still owns some lots in the subdivision, so as to enable it to maintain an action to prevent their violation, or do they exist only for the protection of those who have acquired other lots in the subdivision by deeds containing similar restrictions, and who are not parties to this action?
The cause came on for hearing before his Honor at Chambers, in Wilmington, out of term, upon an order to show cause why a temporary restraining order should not be made permanent, and he found the facts practically as alleged in the...
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