Humphrey v. Beall

• Decision Date: 01 February 1939
• Docket Number: 525.
• Citation: 200 S.E. 918,215 N.C. 15
• Parties: HUMPHREY v. BEALL et al.
• Court: North Carolina Supreme Court

200 S.E. 918

215 N.C. 15

HUMPHREY v. BEALL et al.

No. 525.

Supreme Court of North Carolina

February 1, 1939

Appeal from Superior Court, Mecklenburg County; S. J. Ervin, Jr. Special Judge.

Action by Dr. Virginia Humphrey against Mary Sue Beall and another to enjoin defendants from erecting and maintaining a dry cleaning plant and laundry upon a lot adjacent to residence lot of the plaintiff in alleged violation of restrictive covenant in deed. From an adverse judgment, the defendants appeal.

Reversed.

Generally right of grantees from common grantor to enforce inter se restrictive covenants entered into by each with common grantor is confined to cases where there is proof of general plan or scheme for improvement of property and its consequent benefit, and the covenants have been entered into as part of general plan with reference to which grantees have purchased land.

Provision of deed containing covenant requiring lot to be used for residential purposes, that restriction might be changed, and that grantor might sell other lots without restriction refuted idea of general plan for residential purposes to be exacted alike from all purchasers for benefit of each purchaser, and hence purchaser who constructed residence could not enforce covenant against purchaser of another lot of same subdivision, who allegedly contemplated violation of restrictive covenant.

Civil action to enjoin defendants from erecting and maintaining a dry cleaning plant and laundry upon lot adjacent to residence lot of plaintiff in alleged violation of restrictive covenants inserted in deeds pursuant to an alleged general plan for and development of a subdivision of an area of land known as Dilworth in the City of Charlotte.

Plaintiff owns lot No. 6 and defendants owned the adjoining or south half of lot No. 7 in Block 35 in a subdivision of land covered by map recorded in Map Book 3 at page 10 in the office of Register of Deeds of Mecklenburg County, and being a portion of the area known as Dilworth. Plaintiff and defendants, respectively, claim title through mesne conveyances from a common source, Charlotte Consolidated Construction Company, which conveyed the title to both lot No. 6 and the said one half of lot No. 7 in said block, by deed dated 4 November, 1925, to B. F. Wellons which was made subject to building restrictions, among others, that the lots should be used for residential purposes only, in dwellings to cost not less than $12,000, which restrictions should be held to run with and bind the lands to be conveyed and all subsequent owners and occupants thereof, provided, however, that any of such restrictions might be changed at any time and in any manner by and with the mutual written consent of the grantor or its successors, and the owner or owners for the time being of the land conveyed, and "provided further that nothing herein contained should be held to impose any restriction on the land of the grantor not hereby conveyed".

Plaintiff offered evidence tending to show these facts: The Charlotte Consolidated Construction Company, owning certain lands within the corporate limits of the city of Charlotte, began to develop and sell same as high class suburban property known as Dilworth. About the year 1922 the company caused to be prepared and registered in Map-Book 3, page 10, in the office of the Register of Deeds of Mecklenburg County a map covering and showing the plan for subdividing and laying off into blocks and lots (255 lots) a portion or subdivision of Dilworth. Nearly two hundred of the lots in said subdivision were sold under restrictions that lots should be used for residential purposes only, and that dwelling houses to cost from $4500 to $12,000, the amount being specified in each case and varying in price with respect to location, should be constructed on any lot. In each deed for all the property fronting on Dilworth Road the restrictions as to residence cost was fixed at not less than $12,000. In each of the deeds for all the lots sold except four said residential restrictions were inserted, and in each it is provided that any of the conditions and restrictions therein contained may be changed at any time and in any manner by and with the mutual consent of the grantor, or its successors, and the owner or owners, for the time being, of the land thereby conveyed. In approximately one hundred and twenty-five of those deeds there is inserted the additional provision that nothing therein contained shall be held to impose any restriction upon any land of the grantor not thereby conveyed, and further reserving all rights, title, and interest in and control over and the right to alter, change or close up any and all the streets shown upon the map in question which are not contiguous to and not necessary to the full enjoyment of the lot described in the deed. This further reservation is also in the deed from Charlotte Consolidated Construction Company to B. F. Wellons.

In the entire development only four lots have been sold and conveyed in nonconformity to such building restrictions: 1. A lot on McDowell Street on the outer edge of the subdivision conveyed to J. R. Harris without restrictions except as to members of the white race. 2. The Oasis Temple lot which is restricted to use either for residential purposes, or Shrine Temple or...