Reed v. Elmore

• Decision Date: 22 May 1957
• Docket Number: No. 239,239
• Parties: C.S.REED v. H.H.ELMORE and wife, Bula T. Elmore.
• Court: North Carolina Supreme Court

Page 360

98 S.E.2d 360

246 N.C. 221

C.S.REED v. H.H.ELMORE and wife, Bula T. Elmore.

No. 239

Supreme Court of North Carolina.

May 22, 1957

Taliaferro, Grier, Parker & Poe, Charlotte, for plaintiff appellee.

Sedberry, Clayton & Sanders, Charlotte, and Gaston, Smith & Gaston, Belmont, for defendants appellants.

RODMAN, Justice.

The question presented for decision is: Do the provisions of the deed from Mrs. Shannon to plaintiff impose mutual restrictive servitudes on the lands then conveyed to plaintiff and retained by Mrs. Shannon, or did the deed merely create mutual personal obligations?

The answer is to be found by ascertaining the intention of grantor and grantee when the sale and purchase was consummated. That must be done by interpreting the language which the parties chose to express that intention. Stephens Company v. Lisk, 240 N.C. 289, 82 S.E.2d 99; Hine v. Blumenthal, 239 N.C. 537, 80 S.E.2d 458; Spencer v. Jones, 168 N.C. 291, 84 S.E. 261; Killian v. Harshaw, 29 N.C. 497.

If doubt exists as to the meaning of the language used, it is proper to consider the situation of the parties and the situation dealt with. Monk v. Kornegay, 224 N.C. 194, 29 S.E.2d 754; Carr v. Jimmerson, 210 N.C. 570, 187 S.E. 800; Seawell v. Hall, 185 N.C. 80, 116 S.E. 189; Patrick v. Jefferson Standard Life Ins. Co., 176 N.C. 660, 97 S.E. 657; 26 C.J.S. Deeds § 163, p. 1095.

'In passing on the intent and effect of these conveyances, which must be gotten from the four corners of the instrument, we are guided by the rule that in resolution of doubt in interpretation the instrument must be construed most favorably to the grantee; Sheets v. Walsh, 217 N.C. 32, 38, 6 S.E.2d 817; Brown v. Brown, 168 N.C. 4, 10, 84 S.E. 25; Krites v. Plott, 222 N.C. 679, 681, 24 S.E.2d 531.' Seawell J., in McKay v. Cameron, 231 N.C. 658, 58 S.E.2d 638, 639.

Restrictive servitudes in derogation of the free and unfettered use of land are to be strictly construed to as not to broaden the limitation on the use. Callaham v. Arenson, 239 N.C. 619, 80 S.E.2d 619.

With these well-settled principles in mind we look at the deed from Mrs. Shannon to plaintiff as the gauge by which the rights and obligations of the parties are to be measured. We find that the land conveyed, that is, lot 3, is burdened with an easement for lots 1 and 2 to the Pineville-Matthews Road, which right of way is to be used in common with the owner of lot 3. An examination of the Spratt map filed with the record here would indicate this right of way has a width of less than 20 feet; hence, the grantee had an area of 80 feet or more in width adjoining lot 4, fronting on the Pineville-Matthews Road and extending back from the Pineville-Matthews Road to that width for a distance of 540 feet. This area was his to do with as he pleased unless some restriction was imposed on him or on the land itself. Without such a restriction he could build on it or leave it open as he might desire. If he elected to build, to use it for commercial or residential purposes, as suited his whim. Grantor and grantee agreed that this unrestricted right to use the property was not desirable. Hence, following the provisions providing access to the highway for the land which plaintiff had purchased, as well as for lots 1 and 2, a provision was inserted in the deed which imposes a condition or restriction. Plaintiff's right to use the property which he purchased was circumscribed by this clause: 'no structure shall be erected by the grantee within 550 feet of the Pineville-Matthews road.' Had the restriction stopped there, it might be suggested the parties intended only to limit the right of the grantee but did not intend to impose any restraint on any subsequent owner of lot 3. Any such idea is, however, immediately banished by the very next clause which deals with the land itself and not the owner. It says: 'It being understood and agreed that the 100 foot strip leading to said tract of land from the Pineville-Matthews road shall not be used for purpose of constructing any building thereon.'

That the restriction imposed on plaintiff and on his land could be enforced is not open to debate. It is said in Sheets v. Dillon, 221 N.C. 426, 20 S.E.2d 344, 347: 'The courts have generally sustained covenants restricting the use of property where reasonable, not contrary to public policy, not in restraint of trade and not for the purpose of creating a monopoly--and building restrictions have never been regarded as impolitic. So long as the beneficial enjoyment of the estate is not materially impaired and the public good and interest are not violated such restrictions are valid. Subject to these limitations the court will enforce its restrictions and prohibitions to the same extent that it would lend judicial sanction to any other valid contractual relationship.' The principle there stated has been repeatedly recognized. The factual situations in particular cases have not always called for an application of the principle. Ingle v. Stubbins, 240 N.C. 382, 82 S.E.2d 388; Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661; Craven County v. FirstCitizens Bank & Trust Co., 237 N.C. 502, 75 S.E.2d 620; Phillips v. Wearn, 226 N. C. 290, 37 S.E.2d 895; Eason v. Buffaloe, 198 N.C. 520, 152 S.E. 496; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697.

The vast majority of the cases dealing with restrictive covenants grow out of conveyances on the grantee or on the property conveyed without expressly imposing in the conveyance a similar condition or restriction on the grantor. In those cases, the courts have been called upon to determine whether the grantor intended to impose a restriction for his personal benefit or whether he intended to create a benefit for all of the property that he owned. Where the grantor has, by uniformity of the conditions imposed with respect to a given area, evidenced his intention to create mutual servitudes and benefits, the restrictions are held to be covenants running with the land. Where there is absence of uniform pattern, the intention is not established; hence, the covenants or restrictions or conditions are held to be personal to the grantor. Ingle v. Stubbins, supra; Craven County v. FirstCitizens Bank & Trust Co., supra; Phillips v. Wearn, supra; Turner v. Glenn, 220 N. C. 620, 18 S.E.2d 197; Sedberry v. Parsons, 232 N.C. 707, 62 S.E.2d 88; Eason v. Buffaloe, supra. Uniformity of pattern with respect to a development furnishes evidence of the intent of the grantor to impose restrictions on all of the property and when the intent is ascertained it becomes binding on and enforceable by all immediate grantees as well as subsequent owners of any part of the property; but the fact that there is an absence of uniformity in the deeds does not prevent the owner of one lot from enforcing rights expressly conferred upon him by his contract. 'Contractual relations do not disappear as circumstances change.' Vernon v. R. J. Reynolds Realty Co., 226 N.C. 58, 36 S.E.2d 710, 712. The absence of any reference in the deed for lot 4 to the right of way granted lots 1 and 2 does not, because of want of uniformity, destroy the rights accorded those lots.

It is said in Turner v. Glenn, supra [220 N.C. 620, 18 S.E.2d 201]: 'A deed which makes reference to a map or plat incorporates such plat for the purpose of more particular description but does not bind the seller, nothing else appearing, to abide by the scheme of division laid down on that map. The purchaser has no right to understand or believe from such reference that the grantor will in his future conveyances abide by such plan of division.' This is an effective if negative way of stating that the grantee who insists that there be inserted in his deed a condition or covenant that the grantor will comply has a right to enforce it. Recognition of the importance of imposing the restriction on the grantor in the deed under which grantee claims is to be found in Stephens Company v. Binder, 198 N.C. 295, 151 S.E. 639, 640. Justice George W. Connor, holding plaintiff grantor was not bound by restrictive covenants, said: 'None of the defendants, claiming under the immediate grantee of the plaintiff, has any right to or easement in lots owned by plaintiff, at the date of its conveyance of the lot now owned by said defendant to its grantee, by reason of any express covenant on the part of the plaintiff.' (Emphasis added.) Justice H. G. Connor stated the rule in the affirmative when he said, in Milliken v. Denny, 141 N. C. 224, 53 S.E. 867, 870: 'If purchasers of property wish to acquire a right of way or other easement over other lands of their grantor it is very easy to have it so declared in the deed of conveyance.' (Emphasis added.)

Plaintiff, when he purchased, heeded the warnings of Justice Connor and caused to be inserted in the deed to him this provision: 'This restriction shall likewise apply to Lot No. 4, retained by the grantor, said Lot No. 4 being adjacent to lands hereby conveyed.' Note the restriction is not on the grantor. It is imposed on the land of grantor. It was a creation of a servitude on the land irrespective of ownership. There is no need to search for grantor's intent. It is clearly and distinctly expressed.

What was the restriction? Can there be any doubt that the parties (grantor and grantee) meant and said that no building or structure should be erected on either lot 3 or lot 4 within 550 feet of the PinevilleMatteews Road? So construed there would be an open, unobstructed view of the highway. It is alleged and admitted that plaintiff's home is on lot 3. He has constructed a lake and made other improvements thereon. It may be inferred that the land was purchased for a home and 'a quiet and secluded place of abode.' In any event, one who has only a limited view of the highway might well deem an open and unobstructed view across his neighbor's land of material benefit and hence insist on imposing a servitude on that land as a...