Martin v. Floyd

• Decision Date: 28 February 1984
• Docket Number: No. 0170,0170
• Court: South Carolina Court of Appeals
• Parties: Woodrow MARTIN and Edwin Floyd, Respondents, v. J. Bryan FLOYD and Heritage Shores, Ltd., Appellants. . Heard

Page 133

317 S.E.2d 133

282 S.C. 47

Woodrow MARTIN and Edwin Floyd, Respondents, v. J. Bryan FLOYD and Heritage Shores, Ltd., Appellants.

No. 0170.

Court of Appeals of South Carolina.

Heard Feb. 28, 1984.

Decided May 14, 1984.

Stevens, Stevens, Thomas, Hearn & Hearn, Myrtle Beach, for appellant Floyd. O.A. Rankin, Conway, for appellant Heritage Shores, Ltd., for appellant.

D.W. Green, Jr., of Green, Sasser & Beverly, Conway, for respondents.

GARDNER, Judge:

This is an appeal from an order overruling appellants' demurrer to respondents' second amended complaint. We reverse.

In May of 1973, appellant Bryan Floyd (seller) conveyed four lots located in the Heritage Shores Subdivision, Cherry Grove Section of North Myrtle Beach, to respondents Woodrow Martin and Edwin Floyd (purchasers) for a consideration of $48,000. Appellant Heritage Shores, Ltd. (Heritage) is the seller's immediate predecessor in title, having conveyed the property to the seller in 1970.

The conveyance by the seller to the purchasers was by general warranty deed and subject to certain restrictive covenants prohibiting the use of the land for anything other than private residences, boarding houses, or clubhouse purposes. At the time of sale, none of the four lots had been developed and were still either in the salt marsh or underwater.

The purchasers' initial amended complaint asserted the appellants had breached the warranty of quiet enjoyment, the warranty of freedom from encumbrances and the warranty of further assurances contained in the general warranty deed because the lots were not suitable for residential purposes.

Appellants demurred to respondents' first amended complaint, and the Honorable James M. Morris sustained that demurrer, permitting the purchasers to plead over.

Respondents' second amended complaint, which is the focus of this appeal, alleged four causes of action against appellants, to wit: (1) the restrictive covenants restricting the property's use to residential purposes constitute an express warranty that the property could be used for private residences; (2) the appellants breached the covenant of quiet enjoyment contained in the general warranty clause of the deed; (3) the appellants breached the covenant of freedom from encumbrances contained in the general warranty clause of the deed; and (4) the appellants breached the covenant of further assurances contained in the general warranty clause of the deed.

Appellants demurred to this second amended pleading, and the trial judge overruled the demurrer. We agree with appellants that the complaint failed to state a cause of action, and reverse and remand for entry of judgment sustaining the demurrer.

In their brief, respondents complain that appellants failed to comply with Supreme Court Rule 8, § 2. However, their brief indicates they had no difficulty in ascertaining the question involved on appeal. Moreover, the basic issue in this case is one which we deem to be of great importance to the bench and bar of this State; hence, we elect to address the merits of the appeal.

DISCUSSION

This is not a suit based upon misrepresentation. Although the second amended complaint vaguely alleges the parties intended the land to be used for residential purposes, it falls far short of an action for fraud and deceit. Rather, the purported causes of action are based upon the untenable position that the general warranty clause and the restrictive covenants warrant that the marshland conveyed was suitable for the construction of residences.

Under South Carolina code pleading, a defendant may demur when facts sufficient to state a cause of action are not alleged in the complaint. S.C. Code of Laws § 15-13-320 (1976). When the complaint, viewed in a light most favorable to the plaintiff, fails to allege sufficient facts to constitute a cause of action a demurrer should be sustained. Carolina Bank and Trust Company v. St. Paul Fire and Marine Company, 310 S.E.2d 163 (S.C.App.1983).

Addressing the first cause of action, we hold the restrictive covenants cannot be the basis of either an express or implied warranty of fitness for residential purposes. We quote from the case of Lane v. Trenholm Building Co., 267 S.C. 497, 229 S.E.2d 728 (1976):

When land is conveyed, there is often no clearly defined objective in the transfer and it would be impossible to imply a warranty of fitness for any purpose. Even when a particular purpose is contemplated, as, for example, by restrictive covenants, the suitability of the land may depend on architectural proposals or other matters entirely independent of the conveyance. Finally, the purchaser can fully inspect undeveloped land and, therefore, when the law denies the purchaser of real estate the benefit of an implied warranty, the consequences are generally not unfair or unjust. (Emphasis ours.) 229 S.E.2d at page 730.

See also Jackson v. River Pines, Inc., 276 S.C. 29, 274 S.E.2d 912 (1981).

The clear meaning of the language emphasized is that no inference of suitability can be drawn from a restrictive covenant. Accordingly, the restrictive covenants in A South Carolina general warranty deed embraces all of the following five covenants usually inserted in fee simple conveyances by English conveyors: (1) that the seller is seized in fee; (2) that he has a right to convey; (3) that the purchaser, his heirs and assigns, shall quietly enjoy the land; (4) that the land is...