Myers Park Homes Co. v. Falls

• Decision Date: 29 November 1922
• Docket Number: 441.
• Citation: 115 S.E. 184,184 N.C. 426
• Parties: MYERS PARK HOMES CO. v. FALLS ET AL.
• Court: North Carolina Supreme Court

115 S.E. 184

184 N.C. 426

MYERS PARK HOMES CO. v. FALLS ET AL.

No. 441.

Supreme Court of North Carolina

November 29, 1922

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

Submission of controversy by the Myers Park Homes Company against J. F Falls and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Where vendor acquired a lot in block 45 from the original owners of a tract developed as a residential district, and in part only of the owner's deeds, there were restrictions that no subdivision was to be made, so as to result in a plot having area of less than half an acre or frontage of less than 100 feet, and originally block 45 was developed and lots sold under the restriction, but there was no general plan or uniform scheme adopted which affected the entire development of the tract, and a revised plat was made showing all unsold portions of block 45 subdivided into smaller parcels, and all owners in block 45 released from the restriction, purchaser of a lot in the subdivided plat could not refuse title because of an alleged restriction.

C. W Tillett, Jr., of Charlotte, for appellants.

John M Robinson and C. H. Gover, both of Charlotte, for appellee.

STACY J.

The following statement of the facts, taken from the case agreed will suffice for our present decision:

On April 1, 1922, defendants entered into a written contract whereby they agreed to purchase from the plaintiff a house and lot in a subdivision of Myers Park, a residential section near the city of Charlotte, N.C. Plaintiff executed and tendered deed, sufficient in form, to the defendants who have refused to accept same, contending that the title to said property is defective. This suit is brought to compel specific performance. The locus in quo is known and designated as lot G in block 45, as shown on map or plat duly recorded in the office of the register of deeds for Mecklenburg county; said lot having a frontage of 75 feet and an area of a little more than a quarter of an acre. It is this small frontage and area that constitute the alleged defect in title.

Plaintiff acquired the property, in its present dimensions, from the Stephens Company, the original owners of the whole of Myers Park. It is the contention of the defendants that the Stephens Company could not convey the lot in question, or any other lot in Myers Park, to the plaintiff or other with a frontage of less than 100 feet and an area of less than one-half acre. In support of this position, it is alleged that the Stephens Company, before it sold the locus in quo, together with other lots, to the plaintiff, by its conduct and action in pais at least, had obligated itself not to convey lots in this subdivision in dimensions of less than 100 feet frontage and one-half acre in area.

Some 12 or 13 years ago the Stephens Company became the owner of a tract of land near the city of Charlotte, containing approximately 1,100 acres. It undertook to develop this property into a desirable residential section, and gave to it the name of Myers Park. From time to time, lots in various subdivisions of this property were placed on the market for sale after said subdivisions had been arranged and prepared for residential purposes by the putting down of paved streets, installing gas, water, and sewer mains, providing for electric light connections, etc. We had occasion to consider the effect of the recordation and subsequent sale of lots by reference to maps of these subdivisional plots in connection with the general map or "key map" in Stephens Co. v. Myers Park Homes Co., 181 N.C. 335, 107 S.E. 233. Reference to that case may aid, in a measure, to a better understanding of the facts here.

The Stephens Company advertised that it was developing Myers Park as a desirable residential suburb, and at the very beginning worked out a series of restrictions and limitations, which were incorporated in some but not all of the deeds executed by it in conveying lots sold in this territory. These restrictions, 13 in number, are set out in full in the record, but the ones more directly pertinent to the present appeal are the eighth and thirteenth, as follows:

"(8) No subdivision of any part of the above-described property by sale, or otherwise, shall be made so as to result in a plot having an area of less than half an acre or a frontage of less than one hundred (100) feet."

"(13) It is expressly understood and agreed by the parties hereto that all of the foregoing covenants, conditions and restrictions, which are for the protection and general welfare of the community, shall be covenants running with the land."

While the Stephens Company has held out and advertised itself as offering for sale high-class, restricted, residential property, it has never advertised lots in Myers Park as being limited to those having an area of at least one-half acre or a frontage of at least 100 feet. Nor has it, by advertisement or representation, indicated or intimated that all or any part of its property would be sold only upon the terms set forth in restriction No. 8.

In the course of time the development of Myers Park reached the vicinity of the subdivision with which we are now concerned, and the Stephens Company had a plat prepared and recorded, showing this subdivision as block 45; and upon the map said block was shown as being divided into lots of not less than one-half acre in area, and each with a frontage of not less than 100 feet. A number of lots were sold according to this plat, and thereafter a revised plat was made and recorded showing all unsold portions of this subdivision, or block 45, to be subdivided into lots of about one quarter of an acre in area, and each with a frontage of approximately 75 feet. After this revised plat had been recorded, the locus in quo, with a number of other lots, was conveyed by the Stephens Company to the plaintiff.

No written instrument, memorandum, or note has ever been executed by the Stephens Company, the plaintiff's grantor, or by any person in its name, expressly granting to the purchasers of lots previously conveyed, or others, any easement in the nature of the alleged restriction upon the land retained by it, of which the locus in quo constituted a part. Nor has it entered into any express covenant to hold the remainder of its said tract subject to the restriction that no part thereof should be sold in lots of less than one-half acre in area and each with a frontage of not less than 100 feet. No agreement has been made by it to exact such a covenant from future purchasers of any of the remaining lots in this development.

The only covenant in writing expressly affecting and referring to the lot in question, executed either by the Stephens Company or by the plaintiff, or by any agent lawfully authorized by either, is the covenant contained in the deed from the Stephens Company to the plaintiff, namely, "no subdivision of any part of the above-described property by sale, or otherwise, shall be made." At the time this recital was incorporated in the deed, the dimensions of said lot were, as stated above, about one-quarter of an acre in area and with a frontage of approximately 75 feet.

For the purpose of satisfying the defendants, the plaintiff has procured from all owners of lots shown upon the subdivisional plat, upon which the lot in controversy appears, duly executed and acknowledged releases, waiving any and all rights which they may have to enforce said restriction and consenting that the Stephens Company shall sell lots in said subdivision of less than one-half acre in area and each with a frontage of less than 100 feet.

Notwithstanding these releases, the defendants refuse to accept the deed tendered, contending that the alleged restriction upon the locus in quo cannot be released except by the owners of all lots in all subdivisions in Myers Park. Though it is admitted by the defendants that Myers Park has been developed and tracts offered for sale in sections or subdivisions, as hereinbefore set forth, yet they contend that these component tracts or subdivisions constitute one single development, or a unity, and that owners of lots in other subdivisions have as much right to enforce the alleged implied restriction as those who own lots in block 45.

It is agreed that the Stephens Company has at no time actually or intentionally adopted any policy, plan, or scheme to sell all of its said property, or all of the lots in any subdivision thereof, in lots of no less than one-half acre in area, or each with a frontage of not less than 100 feet. And it is further agreed that, unless the recording of the said subdivisional plats and the sales by reference thereto amount, as a matter of law, to the adoption of such a plan of development, it has done no act which could be construed as adopting any definite or fixed plan with respect to the area or frontage of lots thereafter to be sold. On the contrary, it is conceded that it has always been the actual intention and plan of the Stephens Company to sell, in such localities as it might deem advisable, smaller lots than those provided for under the restriction in controversy, and, for said purpose to alter and to revise its said subdivisional plats, and it has in fact, in a number of instances, altered and revised the same.

It is further agreed that, at various times, the Stephens Company has caused to be made maps of the entire territory within Myers Park, showing the developed portions thereof in accordance with the recorded subdivisional plats, and that it has also prepared tentative plans for the future development of other subdivisions, but that said maps were made and used solely for tentative purposes, and to give an idea of the general plan of the development. While these...