McDonald v. Welborn, 16525

• Decision Date: 26 July 1951
• Docket Number: No. 16525,16525
• Parties: McDONALD et al. v. WELBORN et al.
• Court: South Carolina Supreme Court

Page 327

66 S.E.2d 327

220 S.C. 10

McDONALD et al. v. WELBORN et al.

No. 16525.

Supreme Court of South Carolina.

July 26, 1951.

Mann, Arnold & Mann, Greenville, for appellants.

Love, Thornton & Blythe, Greenville, for respondents.

FISHBURNE, Justice.

This is an appeal from a decree of the county court of Greenville County, awarding a mandatory injunction against the defendants, J. F. Welborn and J. F. Welborn, Jr., commanding them to remove certain buildings in process of construction on their adjoining lots, Nos. 3, 4, 5, 6, and 7 of Block A, in a residential subdivision known as Woodville Heights. The mandatory injunction was awarded upon the ground that the erection of buildings to be used for commercial purposes violated building restrictions applicable to these lots. It was stipulated by counsel for the case to be heard before the county court upon the pleadings, submitted affidavits, and all pertinent records of Greenville County. The parties will be referred to as plaintiffs and defendants.

In 1940, H. H. Willis acquired a large tract of land two miles west of the city limits of Greenville out of which he created a subdivision to which he gave the name Woodville Heights. This land was subdivided and platted into blocks, lots and streets, and the plat thereof was duly recorded in Greenville County on June 16, 1941, in Plat Book L, at Pages 14 and 15.

The tract was subdivided by Willis, as shown by the record, pursuant to a general scheme or plan adopted by him for the benefit of all future owners of lots in the subdivision. Willis conveyed about 75 lots subject to certain specific restrictions referred to in the deeds to the different purchasers. The lots conveyed by him between 1941 and 1944, were scattered throughout the seven or eight blocks comprising the subdivision. In every conveyance made by him, it was recited that the lots were sold subject to the restrictions recorded in the register's office in Greenville County in Deed Book 229, at Page 335, specifically applicable to Woodville Heights. This instrument was spread upon the records on January 16, 1941, before any portion of the property was sold. It was not signed, witnessed or probated. Immediately below this recorded instrument, an addenda thereto was recorded January 28, 1941, and was signed by Henderson and Martin, who as real estate agents, sold the property to Willis. They had charge of the property for him in its subdivision, platting and sale. The record shows that they were exclusive agents for this purpose, and while all deeds to the property were signed by Willis, it was Henderson and Martin who interviewed prospective purchasers and effected the sale of lots.

Among the restrictive covenants referred to above, are those confining the use of the lots comprising the whole subdivision to residential purposes, and prohibiting such use as would constitute a nuisance to the neighborhood. These restrictive covenants are similar in tenor to covenants of this nature generally and through Henderson and Martin were approved by the Federal Housing Administration. By such approval, prospective purchasers were enabled to procure loans for the building of dwelling houses.

It is the first of these restrictions, Paragraph A, which the plaintiffs charge the defendants with having violated. It is alleged and admitted that the defendants Welborn, over the written protest of the plaintiffs served on January 27, 1950, erected a shavings shed in connection with a sawmill owned and operated by them, separated from this subdivision by a public road; and thereafter began the construction of a dry kiln plant on Lots 3, 4, 5, 6 and 7 of Section A of the subdivision.

The plaintiffs are all lot owners in this exclusive residential subdivision and own their own dwelling houses, which consist of nice new homes selling at a price range of from $7,000.00 to $10,000.00; and which are almost exclusively owner occupied. It is further alleged that to permit the defendants to violate the restrictive covenant which prohibits the use of any lot for any purpose other than dwellings, would greatly diminish the value of all the lots, and would result in irreparable loss. It should also be stated that the record shows that in connection with the sale of all of the 75 lots conveyed to various purchasers by Willis, the benefit of the restrictive covenants was used as a sales argument to the prospective purchasers, and that they bought on the faith that the restrictions applied to all the lots in Woodville Heights.

Lots 6 and 7 of Section A, now owned by the Welborns, were conveyed by Willis to C. L. Greene, by conveyances which included this specific provision following the description of the lots: 'This property is sold subject to the restrictions now recorded against this property in Book 229, at Page 335, RMC Office for Greenville County, South Carolina.' These deeds also make specific reference to the plat of Woodville Heights recorded in the RMC Office for Greenville County. Greene in turn conveyed these two lots to the defendants, incorporating in the deed the identical provision just quoted, and made reference to the book and page containing the restrictive covenants.

It is contended by the defendants that the instrument containing the recorded restrictions is one which affects realty, and that it was not signed by the owner and not witnessed. It is further asserted that the recordation of the instrument was a nullity in that it was not legally entitled to record because of not having been probated, and for that reason could not operate as constructive notice of its contents. See 1942 Code, Sections 897, 3632, and 3637, and Franklin Sav. & Loan Co. v. Riddle, 216 S.C. 367, 57 S.E.2d 910.

Assuming that the instrument containing the restrictive covenants was irregularly recorded, we do not concede that the question of the regularity of its recording is vital to the issue of notice and knowledge under the facts of this case. In the main, the question is, did the defendants have notice of the fact that Woodville Heights was restricted to residential purposes? Defendants overlook that this instrument was incorporated by direct reference to book and page of its recordation, not only in the deed by Greene to the defendants, but in the deeds of all of the purchasers of the 75 lots sold by Willis, the original owner and grantor. And regardless of whether the restrictive covenants were properly recorded, they by reference constituted a part of the deed to each grantee.

The law imputes to a purchaser of real estate notice of the recitals contained in the written instruments forming his chain of title, C. Aultman & Co. v. Utsey, 34 S.C. 559, 13 S.E. 848; and charges him with the duty of making such reasonable inquiry and investigation as is suggested by the recitals and references therein contained. Generally, the means of knowledge and the duty of using them are equivalent to knowledge. Moyle v. Campbell, 126 S.C. 180, 119 S.E. 186. If there are circumstances sufficient to put the party upon inquiry, he is held to have notice of everything which that inquiry,...