Johnston v. Garrett

• Decision Date: 23 December 1925
• Docket Number: 466.
• Citation: 130 S.E. 835,190 N.C. 835
• Parties: JOHNSTON ET AL. v. GARRETT.
• Court: North Carolina Supreme Court

130 S.E. 835

190 N.C. 835

JOHNSTON ET AL. v. GARRETT.

No. 466.

Supreme Court of North Carolina

December 23, 1925

Appeal from Superior Court, Mecklenberg County; Lane, Judge.

Suit by Kate P. Johnston and others against Jesse W. Garrett. From an order continuing temporary restraining order until final hearing, defendant appeals. Affirmed.

In this action, begun on April 2, 1925, plaintiffs pray judgment that defendant be perpetually restrained and enjoined from violating certain conditions and restrictions contained in deeds under which defendant claims title to the lot of land described in the complaint. A temporary restraining order was issued by Judge Lane, dated April 2, 1925, in which defendant was required to show cause at a subsequent date why the said order should not be continued to the final hearing. Pursuant to said order, defendant, with his attorneys, appeared before Judge Lane at Charlotte, N. C., on May 9, 1925. After hearing evidence offered by both plaintiffs and defendant, Judge Lane signed an order continuing the temporary restraining order until the final hearing. From this order, defendant appealed.

Conditions and restrictions held enforceable by grantee against any other grantee.

E. A Hilker and D. E. Henderson, both of Charlotte, for appellant.

John M Robinson and Taliaferro & Clarkson, all of Charlotte, for appellees.

CONNOR J.

Upon the hearing, at which the temporary restraining order was continued, Judge Lane, from the pleadings, records, and evidence offered, found as facts to sustain the order from which defendant has appealed: (1) That defendant is the owner of lot No. 11 in block 3-A of Myers Park, as shown on the map thereof recorded in Book 230, at page 129, in the office of the register of deeds of Mecklenberg county; (2) that plaintiffs are the owners, respectively, of lots Nos. 12, 14 and 16 in said block; (3) that plaintiffs and defendant own their said lots, claiming title thereto under deeds containing certain conditions and restrictions set out in the deeds by which the Stephens Company originally conveyed said lots; (4) that defendant, in violation of said conditions and restrictions and in violation of the rights of plaintiffs and over their protests and without their consent, is now proceeding to erect on his lot a second house or residence, so that there would be, if the same is erected, two houses or residences on same, the second house, when completed, fronting on Edgehill Road; (5) that defendant threatens and intends to subdivide said lot, with the result that the lot adjacent to lot No. 12, owned by plaintiffs, the Misses Johnston, will contain less than four-tenths of an acre; and (6) that if defendant proceeds with the erection of said house and the subdivision of said lot according to his plans, it will all result in irreparable harm and damage to plaintiffs and each of them. There was evidence sufficient to sustain each of the foregoing findings.

Defendant contends that there was error in continuing the restraining order, for that his honor did not find that said lots were a part of and included within a general scheme and plan of...