Phillips v. Wearn
| Decision Date | 01 May 1946 |
| Docket Number | 523 |
| Citation | 37 S.E.2d 895,226 N.C. 290 |
| Parties | PHILLIPS et ux. v. WEARN. |
| Court | North Carolina Supreme Court |
The essential parts of the agreed statement of facts upon which this controversy was submitted to the Court below, are as follows:
1. Prior to the year 1913, Paul Chatham acquired a tract of land partly lying in the eastern section of the City of Charlotte and partly outside, and caused a map thereof to be made, said map showing 53 blocks and known as Chantilly.
2. Prior to the year 1913, Paul Chatham and wife executed a deed of trust on said property to A. T. Summey, trustee, which deed of trust is duly recorded. The said deed of trust contained no conditions or restrictions affecting or limiting the use of the property, and the property was not subject to any conditions or limitations affecting its use prior thereto.
3. On the 8th day of July, 1913, Paul Chatham and wife conveyed all of said property shown on the aforesaid map to the Greater Charlotte Finance & Realty Company, by deed recorded in the Mecklenburg County Registry in Book 312, page 338, except Blocks Nos. 1, 2 and 44, which were retained by the grantors. The Greater Charlotte Finance & Realty Company caused said map to be recorded in Book 230, pages 248 and 249 in the office of the Register of Deeds for Mecklenburg County, North Carolina.
4. During the years 1913, 1914, 1915, 1916, 1917 and 1918, the Greater Charlotte Finance & Realty Company sold 262 lots located in 26 different blocks, in said development as shown on said map to various purchasers, and the deeds conveying said lots contained no restrictions or conditions limiting or restricting the use and occupancy of said property to residential purposes only.
5. During the years from 1913 to 1918, inclusive, the Greater Charlotte Finance & Realty Company conveyed to various purchasers 433 lots of land in said development, and the deeds to said lots contained restrictions and conditions limiting the use and occupancy of said lots for residential purposes only; said deeds contained also provision that any of said property could be released from said restrictions with the written consent of the grantor and then owner of any lot or lots. The lots so conveyed were located in 31 different blocks of the development. During this period the grantor also sold lots in 16 of the same blocks without restrictions.
6. All of the above lots were released by A. T. Summey, trustee from the deed of trust referred to herein; During the months of January and February, 1918, the said deed of trust executed by Paul Chatham and wife to A. T. Summey, trustee aforesaid, was foreclosed and the said A. T. Summey, trustee executed a deed dated February 13, 1918, to H. L. Taylor, said deed conveying all lots covered by said deed of trust which had not theretofore been released. The said deed to H. L. Taylor conveyed approximately 380 lots including the locus in quo described in Sales Contract marked 'Exhibit A' attached to the complaint in this action. Said deed contained no conditions or restrictions limiting or affecting the use or occupancy of said property.
7. By deed dated February 13, 1918, H. L. Taylor conveyed the aforesaid lots to the Oakhurst Land Company, said deed being duly recorded. This deed contained no conditions or restrictions limiting or affecting the use or occupancy of said property.
8. Oakhurst Land Company, on the 15th day of February, 1932, executed a deed of trust on said lots to W. B. McClintock, trustee, securing an indebtedness to the Charlotte National Bank of Charlotte, North Carolina. This deed of trust is duly recorded and contains restrictive covenants as follows: (a) Property not to be owned or occupied by persons of the negro race; (b) Building located on said property to be located not less than 25 feet from the front property line; (c) Said property to be used for residential purposes only; (d) Building to cost not less than $3,000.
9. The aforesaid deed of trust executed to W. B. McClintock, trustee, was foreclosed by civil action and W. B. McClintock was appointed commissioner to sell the said property and deed was executed by the said W. B. McClintock, Commissioner, to the Charlotte National Bank of Charlotte, North Carolina. The said deed contained restrictive covenants as above set out in paragraph 8.
10. By deed dated April 10, 1937, the Charlotte National Bank of Charlotte, North Carolina, conveyed said property to D. L. Phillips and wife, Louise E. Phillips, the plaintiffs, said deed being recorded in the Mecklenburg County Registry, in Book 919, page 36. This deed contains the same restrictive provisions as set forth in paragraph 8 above.
11. The Oakhurst Land Company, a corporation and former owner of said property, has been dissolved for a period of more than ten years and has no interest in any property in the development known as Chantilly.
12. In none of the deeds conveying lots in the development known as Chantilly shown on the map hereinabove referred to was there any clause providing for a forfeiture or reverter of title to said lots or any clause of defeasance or for re-entry in event of breach of or failure to perform the...
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