De Laney v. Van Ness

• Decision Date: 11 May 1927
• Docket Number: 464.
• Citation: 138 S.E. 28
• Parties: 193 N.C. 721, 57 A.L.R. 238 v. VAN NESS et al. DE LANEY et al.
• Court: North Carolina Supreme Court

138 S.E. 28

193 N.C. 721, 57 A.L.R. 238

DE LANEY et al. v. VAN NESS et al.

No. 464.

Supreme Court of North Carolina

May 11, 1927

Appeal from Superior Court, Mecklenburg County; Finley, Judge.

Action by E. S. De Laney and others against J. R. Van Ness and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Covenant to erect only "dwelling house" on land held not to exclude erection of four-family apartment house.

Plaintiff alleges that Ethel R. De Laney is the owner of lot No. 13, in block No. 13, of the revised map of Piedmont Park, said lot fronting 66 feet on Louise avenue and having a depth of 150 feet; that Ethel R. De Laney purchased said lot from Perle Meacham Welch and her husband, C. M. Welch, by deed dated July 27, 1920; that Welch and wife held title by sundry mesne conveyances from Suburban Realty Company.

The following reservations, conditions, and restrictions appear in Ethel De Laney's deed, to wit:

"This conveyance is upon condition that no owner of said real estate shall at any time hereafter erect upon said real estate any structure except a dwelling house, which shall cost not less than $1,500, and no owner of said real estate shall permit any building erected thereon to be used for other purpose than dwelling and other necessary outhouses," etc.

The plaintiff further alleged that the Piedmont Realty Company conveyed 136 1/2 lots in Piedmont Park to F. C. Abbott, by deed dated January 29, 1906, which said deed contained no restrictions; that on February 1, 1906, Abbott conveyed said 136 1/2 lots to the Suburban Realty Company by deed containing no restrictions. It was further alleged that plaintiffs Thomas B. Goode and wife, Bess W. Goode, are the owners of parts of lots Nos. 1 and 2, in block 14, said land beginning 50 feet from the intersection of East Seventh street and Park Drive, and that Goode and wife are the owners of said lot by virtue of a deed, dated August 12, 1922, and executed by John R. Pharr, and mesne conveyances from Piedmont Realty Company to Joseph Ruth. The Goode deed contains the same restrictions and conditions recited in the De Laney deed above mentioned.

It is further alleged that the defendants John R. Van Ness and Chase Brenizer are the owners of and tenants in common of lot No. 1, block 13, of the property known as Piedmont Park, and that said defendants are also the owners of lot No. 2, in block No. 13, of said Piedmont Park property. The defendants acquired title through mesne conveyances from Piedmont Realty Company to J. Louis Spencer and wife, J. C. Neal and wife and Dixie Realty & Building Company. That the deed of the defendants contains the same conditions and restrictions as those set out in the plaintiff's deed.

It is further alleged in the complaint:

"That Piedmont Park was originally an 86-acre tract of land purchased by F. C. Abbott in 1900. A corporation, Piedmont Realty Company, was formed, and the land conveyed to it and then developed into lots, streets, and avenues; and the map showing lots, blocks, streets, avenues, and alleys was made and spread upon the records in the office of the register of deeds of Mecklenburg county; that the Piedmont Realty Company, pursuant to said map, made 58 original conveyances of lots in Piedmont Park and 14 secondary conveyances, the latter consisting of quitclaims, corrective deeds, releases, and reconveyances upon title being reinvested in said company; that 57 of said original deeds conveyed 129 1/2 of said lots, the remaining one original deed conveying 136 1/2 lots as hereinafter set forth; that the Piedmont Realty Company conveyed 121 1/2 lots subject to a restriction same as appears in plaintiff's deed; that 8 of said 129 1/2 lots were conveyed without any restriction to residential purposes only; that of the 57 original conveyances 54 contained the restriction hereinbefore mentioned, 3 deeds containing no restriction whatsoever; that on January 29, 1906, the Piedmont Realty Company made an original conveyance of 136 1/2 lots, as aforesaid, to F. C. Abbott, which deed contained no restrictions whatsoever; that said deed was the fifty-third conveyance of the Piedmont Realty Company, prior thereto 117 1/2 lots having been conveyed subject to the restriction set forth, and 6 unrestricted. That the said F. C. Abbott, prior to said conveyance, caused to be organized a corporation, known as the Suburban Realty Company, with himself as president; that said conveyance of 136 1/2 lots by Piedmont Realty Company to F. C. Abbott was made January 29, 1906. *** The said F. C. Abbott conveyed the identical property to the Suburban Realty Company by deed which contained no restrictions. *** The total number conveyed by Piedmont Realty Company with restrictions was 121, without restrictions 134 1/2. The Suburban Realty Company made maps of its purchase and other added blocks and spread some on record. *** The Suburban Realty Company conveyed said 136 1/2 lots and 40 other lots added by it thereto from other contiguous lands, referring to its map and subject to restrictions practically the same as those contained in the Piedmont Realty Company deeds. Before the Piedmont Realty Company conveyed the same land to Joseph Ruth and wife, Jennie Ruth, under whom said Thomas B. Goode and wife, Bess W. Goode, plaintiffs, claim said Piedmont Realty Company had conveyed to sundry purchasers 60 1/2 lots by 42 deeds with restrictions, and 6 lots by 4 deeds without restrictions, and before said Piedmont Realty Company conveyed the said land to said J. Louis Spencer and wife, under whom defendants claim, said company had conveyed to sundry purchasers 55 1/2 lots by 41 deeds with restrictions and 6 lots by 4 deeds without any restrictions. *** That the Piedmont Realty Company has not done any business or owned any land in the Piedmont Park or elsewhere since June 19, 1911, and on June 19, 1911, said corporation was dissolved so that it cannot join in this action or bring an action in behalf of plaintiffs and others against said defendants. That there are now in said Piedmont Park only three houses which are other than what is known as a single family house, two of said houses being four-family apartments, and one being a duplex or two-family house, and in addition thereto one filling station; one four-family apartment, the duplex house, and filling station being on Seventh street, and one four-family apartment on Beaumont avenue.

That while the plaintiffs Ethel R. De Laney and Thos. B. Goode and wife, Bess W. Goode, and those under whom they claim their said lots of land have not heretofore brought an action for an injunction or other legal action against any of the owners of said four-family apartments, or said duplex house, and have made no formal protest against their erection or maintenance, they have not expressly given their consent to the erection or maintenance thereof.

That the said defendants have had plans drawn and made for the erection of two apartment houses, one an eight-family apartment house on the front part of said land owned by them and herein described, fronting on Seventh street, and a four-family apartment house on the rear part of said land fronting on Beaumont avenue, and they propose to build such apartment upon said lands.

The plaintiffs alleged that the building of said apartment houses on said lands by said defendants will irreparably injure the said plaintiffs and the value of the land owned by them.

That the plaintiffs bring this action on behalf of themselves and all other parties owning lots in Piedmont Park, in the city of Charlotte, who may come in and be made parties plaintiff.

Wherefore plaintiffs pray judgment that defendants be perpetually restrained and enjoined from erecting upon their land herein specifically described any apartment house or any other house except what is known as a one-family dwelling house, from dividing their said lot into two parts, one fronting on East Seventh street, and the other fronting on Beaumont avenue, and from using said lots, or either of them, for the purpose of building said apartment houses or houses other than one-family dwelling houses, and plaintiffs further pray judgment for the costs of this action to be taxed by the clerk, and for such other and further relief to which they may be entitled."

The defendants demurred to the complaint, said demurrer being as follows:

"The defendants demur to the complaint of the plaintiffs and assign as grounds therefor that the complaint does not state facts sufficient to constitute a cause of action, in that it appears on

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