New Hope Realty Co. v. Barnes

• Decision Date: 03 April 1929
• Docket Number: 331.
• Citation: 147 S.E. 617,197 N.C. 6
• Parties: NEW HOPE REALTY CO. v. BARNES et al.
• Court: North Carolina Supreme Court

147 S.E. 617

197 N.C. 6

NEW HOPE REALTY CO. v. BARNES et al.

No. 331.

Supreme Court of North Carolina

April 3, 1929

Appeal from Superior Court, Durham County; Devin, Judge.

Suit by the New Hope Realty Company against Ed Barnes and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Covenant relating to facing of houses held to justify restraint of its violation until all questions of fact relating thereto could be determined.

This is a civil action brought by plaintiff, in which injunctive relief was prayed against defendants Alex Barnes, the owner of lots 27 and 28, as shown on the plat of the South street property of the plaintiff, and Ed Barnes, a contractor, to stop constructing a house for Alex Barnes, on said lots facing on an unnamed street, in violation of a covenant in a certain deed made by plaintiff to one R. L. McDougald. The deed was made and executed by plaintiff to the said McDougald on March 14, 1927, and was duly recorded in the office of the register of deeds for Durham county in Book 74, p. 659. The deed contained the following covenant: "It is expressly understood and agreed by the parties hereto that any residence erected or placed on the above mentioned lot shall face South Street, and that no residence shall be constructed or licensed to be erected on said lots or front on said unnamed street, this being one of the conditions in the sale of the above property, and this agreement is hereby made a covenant running with the land."

The defendant Alex Barnes purchased the above-named lots in the development from R. L. McDougald "without any restrictive covenants whatsoever." Alex Barnes conveyed one-half interest to one Pratt.

The plaintiff alleges: "That if the said Ed Barnes and Alex Barnes are allowed to continue the construction of the said house, the plaintiff's property will be greatly damaged thereby; that the erection of the said house by the said defendants will greatly injure the beauty and attractiveness of the said Forest Hills, and will be a continuous aggravation to the plaintiff, and will usurp the plaintiff's rights and be a great damage to the value of the said property owned by the plaintiff, for the reason that the value of the said property consists largely in the beauty and attractiveness of the lots as they are situated on the plaintiff's said development. That if the defendants are allowed to continue the erection of the said dwelling the plaintiff will be irreparably injured."

There was evidence to sustain plaintiff's allegations. The defendants denied the allegations of plaintiff, and there was evidence introduced by defendants to sustain their contentions.

R McCants Andrews, of Durham, for appellants.

W. S Lockhart, of Durham, for appellee.

CLARKSON J.

The plaintiff contends that the question involved is: "Is this covenant of such a nature as to justify a restraint of its violation until all questions of fact relating thereto can be determined?" We think so.

Ordinarily the right to injunctive relief to compel the...