Maples v. Horton

• Decision Date: 29 January 1954
• Docket Number: No. 599,599
• Citation: 239 N.C. 394,80 S.E.2d 38
• Parties: MAPLES, v. HORTON et al.
• Court: North Carolina Supreme Court

Page 38

80 S.E.2d 38

239 N.C. 394

MAPLES, v. HORTON et al.

No. 599

Supreme Court of North Carolina.

Jan. 29, 1954

McKeithen & McConnell, Pinehurst, for appellant.

Rowe & Rowe, Southern Pines, for appellees.

DENNY, Justice.

This appeal requires the determination of two questions: (1) Do the covenants and restrictions in the deeds for lots sold by the developer, Frank Maples, negative a general plan or scheme for the development of the area of land in question for residential purposes? (2) If so, may the plaintiff enforce such restrictions as personal covenants? In our opinion the answer to the first question must be in the affirmative, and to the second question, in the negative.

The law generally applicable to a plan or scheme for imposing restrictions upon land for particular purposes is succinctly stated in 26 C.J.S., Deeds, § 167, page 548 et seq., as follows: 'Where the owner of a tract of land subdivides it and sells distinct parcels thereof to separate grantees, imposing restrictions on its use pursuant to a general plan of development or improvement, such restrictions may be enforced by any grantee against any other grantee, either on the theory that there is a mutuality of covenant and consideration, or on the ground that mutual negative equitable easements are created.' Craven County v. First-Citizens Bank & Trust Co., 237 N.C. 502, 75 S.E.2d 620; Sedberry v. Parsons, 232 N.C. 707, 62 S.E.2d 88; Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661; Vernon v. R. J. Reynolds Realty Co., 226 N.C. 58, 36 S.E.2d 710; Brenizer v. Stephens, 220 N.C. 395, 17 S.E.2d 471; Franklin v. Elizabeth Realty Co., 202 N.C. 212, 162 S.E. 199; Bailey v. Jackson-Campbell Co. 191 N.C. 61, 131 S.E. 567; Johnston v. Garrett, 190 N.C. 835, 130 S.E. 835; Myers Park Homes Co. v. Falls, 184 N.C. 426, 115 S.E. 184. 'That covenants reasonably restricting the ownership, use, or occupancy of land, inserted in deeds as a part of a general scheme or plan of development, for the benefit of all owners of property within the development, are valid is conceded.' Vernon v. R. J. Reynolds Realty Co., supra [226 N.C. 58, 36 S.E.2d 711]; 14 Am.Jur., Covenants, yconditions and Restrictions, section 206, page 616.

In the instant case, it will be noted that in each deed in which restrictions were inserted, it was also provided that the restrictions or conditions in the deed were inserted therein for the benefit of the remaining land of the grantors, their heirs or assigns, and further that the grantors retain 'the right to release any of said conditions and to sell any part of its (sic) remaining land free from all or any conditions at their discretion.' It follows, therefore, that the subdivision involved on this appeal has never been subject to any general plan or scheme whereby the restrictive covenants in the deeds referred to above could have been enforced by the grantees inter se. Phillips v. Wearn, 226 N.C. 290 37 S.E.2d 895; Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918, 920.

In the case of Humphrey v. Beall, supra, Winborne, J., in speaking for the Court said: 'The right to change the restrictions as to lots sold, and the right to sell the unsold lots without restrictions, * * * refute the idea of a general plan for residential purposes to be exacted alike from all purchasers, and to be for the benefit of each purchaser.' Higdon v. Jaffa, supra; Phillips v. Wean, supra; 14 Am.Jur., Covenants, Conditions and Restrictions, section 202, page 613; 26 C.J.S., Deeds, § 167(c), page 555; Ringgold v. Denhardt, 136 Md. 136, 110 A. 321.

In light of the conclusion we have reached on the first question posed, it is not necessary to discuss what effect the loss of part of the subdivision by foreclosure, the modification of the restrictions contained in the deeds to Wm. F. Bowman, conveying to him Lots 3 and 4 in Block 1, or the execution of deeds to Lots 9 and 13 in Block 2 without restrictions, had on the purported general plan or scheme for development and sale of the property for residential purposes. Phillips v. Wearn, supra; Humphrey v. Beall, supra; DeLaney v. Hart, 198 N.C. 96, 150 S.E. 702; Ivey v. Blythe, 193 N.C. 705, 138 S.E. 2; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697; Snyder v. Heath, 185 N.C. 362, 117 S.E. 294.

The decision in the case of Starmount Co. v. Greensboro Memorial Park, 233 N.C. 613, 65 S.E.2d 134, 25 A.L.R.2d 898, relied upon by the appellant, involved a factual situation distinguishable from that on the present record. Hence, it is not controlling on this appeal.

It is apparent that the restrictions contained in the deed from Frank Maples and wife, Christian E. Maples, to Marian Nidy, and incorporated by reference thereto in the deed from Marian Nidy to the defendant Mattie V. Horton, are not enforceable except as personal covenants. Phillips v. Wearn, supra; Thomas v. Rogers, 191 N.C. 736, 133 S.E. 18; Snyder v. Heath, supra.

The present plaintiff is the owner of all the unsold lots in the development known as Pine Ridge, Southern Pines, N.C., under and by virtue of the provisions in the last will and testament of her late husband, Frank Maples. However, if she has the right to enforce the restrictions under consideration, it must be as a grantor in the deed to Marian Nidy and not by reason of the fact she is the present owner of the unsold lots in the subdivision. 'One cannot at common law maintain any action upon a personal covenant merely by force of the fact that he is the successor in title of the owner with whom such covenant was made.' 14 Am.Jur., Covenants, Conditions and Restrictions, section 39, page 514; Parker v. Beasley, 40 N.M. 68, 54 P.2d 687; Willcox v. Kehoe, 124 Ga. 484, 52 S.E. 896, 4 L.R.A.,N.S., 466, 4 Ann. Cas. 437; Asher Lumber Co. v. Cornett, 58 S.W. 438, 22 Ky.L.Rep. 569, 56 L.R.A. 672.

It is further stated in 14 Am.Jur., Covenants, Conditions and Restrictions, in section 43, page 515, that: 'The general rule is that only the covenantor or his executors or administrators are bound on a personal covenant. Hence, a personal covenant does not bind the assignee of the covenantor. A personal covenant will not descend to the heir, upon the theory that all personal covenants made by an ancestor terminate with his death. A personal coveant, upon the death of the obligee, goes to his administrator, and he alone is entitled to maintain suit upon the agreement.' Houston v. Zahm, 44 Or. 610, 76 P. 641, 65 L.R.A. 799; Sturgeon v. Schaumburg, 40 Mo. 482, 93 Am.Dec. 311; Fitzsimmons v. South Realty Corp., 162 Md. 108, 159 A. 111.

The authorities seem to hold that a married woman who joins her husband in the execution of a deed to his property, merely to release her inchoate right of dower, conveys nothing and is not bound by the covenants in such deed. 26 Am.Jur., Husband and Wife, section 180, page 801.

Likewise, in 41 C.J.S., Husband and Wife, § 39, page 494, et seq., it is said: 'As a general rule a married woman joining her husband in the execution of a conveyance of his lands...