Hughes v. Clark

• Decision Date: 22 March 1904
• Citation: 46 S.E. 956,134 N.C. 457
• Parties: HUGHES et al. v. CLARK et al.
• Court: North Carolina Supreme Court

46 S.E. 956

134 N.C. 457

HUGHES et al. v. CLARK et al.

Supreme Court of North Carolina

March 22, 1904

Appeal from Superior Court, Pitt County; Moore, Judge.

Action by J. E. Hughes and others against W. T. Clark and another. From a judgment dismissing the action as of nonsuit plaintiffs appeal. Affirmed.

Where one has a tract of land platted into lots and streets, and sells lots with reference thereto, his dedication of the streets is irrevocable, so that he cannot thereafter convey good title to a part of one of them.

Jarvis & Blow and F. S. Spruill, for appellant.

Connor & Connor and Fleming & Moore, for appellees.

MONTGOMERY J.

The purpose of this action is to compel specific performance on the part of the defendant of a contract entered into in February, 1902, for the sale by the plaintiffs and the purchase by the defendant of a parcel or lot of land and its improvements situated in the town of Greenville. In conformity with the written agreement between the parties, the plaintiffs executed in due form a deed to the property, and tendered it to the defendant, who declined to accept it and pay the agreed purchase price on the ground that the plaintiffs had no good and sufficient title to that part of the lot of land described in the deed, upon which was located a leaf tobacco factory and machinery necessary for its operation. The only question in the case, then, is this: Did the plaintiffs have at the time they tendered the deed to the defendant, a good and sufficient title to that part of the lot on which was situated the factory and machinery and equipment? In 1892 the Greenville Land & Improvement Company, being the owner of a tract of land known as the "Moore Land," lying to the southeast of Greenville, and adjoining the town, had the same laid out by P. Matthews, a surveyor, into building lots and streets; Matthews at the same time furnishing a map on which the streets were designated by names and the lots by numbers. Numerous deeds, in each of which one or more of the lots was embraced, to various purchasers, were executed by the Greenville Land & Improvement Company, its successor, the Greenville Lumber Company, and Lovitt Hines, receiver of the last-named company, and duly registered prior to the sales made by said Hines, receiver, of lots Nos. 21, 34, and 35; and in all those deeds reference was made, as to the description of the property conveyed, to the names of streets and numbers of lots as shown on the map of Matthews. The habendum was in these words: "To have and to hold the above-described parcel or lot of land, together with the rights of ingress and egress on all the streets leading to the same, and all other rights and privileges thereto belonging." The lots Nos. 21 and 35, with several others, were conveyed by Hines, receiver, to L. C. Arthur and lot No. 34 was conveyed by Hines, receiver, to Strause, who in turn conveyed it to Arthur. In the deed from Hines to Arthur is also conveyed all the right, title, and interest which the Greenville Lumber Company might have in and to any or all of the streets included in the lands or dividing the lots therein conveyed. Arthur and wife, in 1901, conveyed lots Nos. 21, 34, and 35 to the plaintiffs, together with a strip of land 10 feet wide and running along the southern side of the above-mentioned lots, the said 10 feet being at the time a part of Eleventh street on the map of Matthews. The property mentioned and described in the deed which the plaintiffs tendered to the defendant embraced lots 21, 34, and 35, and also the 10-foot strip of Eleventh street, upon a part of which the plaintiffs afterwards built one end of their tobacco factory. Eleventh street, at the time of the Matthews survey, was set apart and staked off with iron stakes, but that part of the street which was between Clark and Pitt streets, upon which lots 34 and 35 abutted, was not actually put in a condition for general use at the time of the sale of lots 34 and 35, although people could and did pass over the same.

Did Arthur's deed to the plaintiffs have the effect of vesting the title to the 10-foot strip of Eleventh street in the plaintiffs? Or, to state the question in another form could Hines, the receiver of the Greenville Lumber Company, by his deed to Arthur, enable Arthur or his grantees, the plaintiffs, to obstruct Eleventh street by building on a part of it a tobacco factory, as against purchasers of lots according to the plan of the Matthews survey? The decisions of this court are to the contrary. In Rives v. Dudley, 56 N.C. 126, 67 Am. Dec. 231, Judge Pearson, in illustrating the question decided in that case, said for the court: "What is the principle? It is this: If the owner does an act whereby he signifies his intention to appropriate land to the use of the public as a highway or street or square, to be used by the public as a pleasure ground or the like, and individuals, in consequence of this act, purchase property or build houses with reference to its being so used by the public, and become interested to have it so continue, he is precluded from resuming his private rights of property over the land, because it would be fraudulent in him to do so. When individuals have become interested in reference to the use of the land by the public, the dedication takes effect immediately." And again, in Moose v. Carson, 104 N.C. 431, 10 S.E. 689, 7 L. R. A. 548, 17 Am. St. Rep. 681, the court declared it to be a well-settled principle that where a corporation or an individual, by laying off streets, has induced third persons to buy lots adjacent to them, the dedication to the public use of the streets was irrevocable, and that even in cases where they have not been formally accepted by the authorities of a town in which they lie. In Conrad v. Land Co., 126 N.C. 776, 36 S.E. 282, the court said: "If the owner of land lays it off into squares, lots, and streets with a view to forming a town or city or as a suburb to a town or...