Sheets v. Dillon

• Decision Date: 05 June 1942
• Docket Number: 741.
• Citation: 20 S.E.2d 344,221 N.C. 426
• Parties: SHEETS v. DILLON.
• Court: North Carolina Supreme Court

20 S.E.2d 344

221 N.C. 426

SHEETS v. DILLON.

No. 741.

Supreme Court of North Carolina

June 5, 1942

Action to compel specific performance of a contract of purchase and sale of real property.

Plaintiff being the owner of lot No. 13, block 4, West Highlands No. 1 in Winston-Salem, N. C., contracted to sell the same to defendant "free and clear of *** any and all restrictions as to the use of the property for building purposes, the said party of the second part anticipating and planning to use the said property for business purposes only and no other." The defendant refused to comply for that one of plaintiff's predecessors in title, by covenant contained in a deed to the premises, restricted the use of said property to residential purposes.

The plaintiff thereupon instituted this action to compel defendant to comply. The defendant, answering, pleaded the restrictive covenant running with the land contained in one of the deeds in plaintiff's chain of title as a breach of the conditions of the contract. Plaintiff, replying, alleged that the said covenant was not inserted in said deed pursuant to any general plan or scheme of development in a manner to be binding upon the grantor and his other grantees; that even if it was so inserted, conditions have so changed as to make it inequitable and unjust to now enforce it. He prays that the court decree that the covenant is now null and void and of no effect and that defendant be required to comply with his contract. He sets forth fully the facts upon which he bases this plea.

When the cause came on for hearing the parties waived trial by jury and agreed that the court should hear the evidence, find the facts and render its judgment thereon.

After hearing the evidence the court found the facts as follows:

"1. That prior to the development of the property in which the lot at the corner of First and Hawthorne Road, in the City of Winston-Salem, was developed one, P. H. Hanes, owned the property on both the north and south sides of First Street a considerable distance east and west thereof at Hawthorne Road; that he also owned all of the property on both sides of Hawthorne Road, to-wit, the east and west sides, and for a considerable distance therefrom, north and south; that he later formed a corporation known as the West End Development Company, in which he or the immediate members of his family owned all of the stock and transferred the title to all of the property near this intersection and for a considerable distance therefrom to said corporation; that they attempted to limit the development of most of the property sold by them in the block in which the property in question is located, by inserting a limitation or restriction in most of the deeds that the lot be used for residences only but conveyed one lot without this restriction and did not covenant that the land or lots retained would be so restricted; that to the east of this lot across Hawthorne Road it sold a large site to the Gulf Oil Company, to be used by them as a filling station and the said property is used as a filling station as of this date; that it sold to the Pure Oil Company a large lot immediately across First Street from this property for the purpose of erecting thereon a filling station and the said company did erect thereon a filling station and that the said filling station is now used as such; that catercornered across from the lot in question at the southeast corner of First Street and Hawthorne Road the West End Development Company erected a large block of stores which are now rented for grocery stores, drug stores restaurants, barber shops and similar types of establishments; that after the death of the said P. H. Hanes the West End Development Company's stock was inherited by the children of the said P. H. Hanes; that later the West End Development Company was dissolved and all of the real estate consisting of vast acreage and lots was transferred by the West End Development Company to a Trustee for the heirs of P. H. Hanes; that in recent years the said Trustee has erected and leased to the A. & P. Tea Company a large super-market on a lot across First Street to the west of the lot in question and they have erected on the remainder of the lot and adjacent to the super-market a large lot for parking space for the patrons of the said A. & P. Market; that later a filling station was erected for the use of the Standard Oil Company and rented to said Company or some person designated by said Company, and the filling station is now used for that purpose; that by reason of these sales and developments by P. H. Hanes or the closed corporation of P. H. Hanes, the West End Development Company, and/or the Trustees of the heirs of P. H. Hanes, the Court finds as a fact that there has been no general plan of development concerning the lot in question and by reason of the said failure of a general plan of development the restrictions contained in the deed to one of the plaintiff's predecessors in title restricting the use of the said property for residential purposes only, is null and void and of no effect.

"The Court further finds as a fact from the evidence adduced at the trial of this cause that even if a general...