Shuford v. Asheville Oil Co.
| Decision Date | 21 March 1956 |
| Docket Number | No. 89,89 |
| Citation | 243 N.C. 636,91 S.E.2d 903 |
| Parties | W. P. SHUFORD v. ASHEVILLE OIL COMPANY. |
| Court | North Carolina Supreme Court |
Harkins, Van Winkle, Walton & Buck, Asheville, for plaintiff.
Williams & Williams, Asheville, for defendant.
The court below, in refusing to continue the temporary restraining order until the final hearing, rested its decision on two grounds: (1) On the acquiescence of plaintiff in the deed executed by him on 16th September, 1949, to Harold C. Wilburn, Chester Brown, Jr. and Jack H. Brown, the grantors of the defendant, by the contract entered into by and between the grantor and the grantees in said deed on 19th December, 1949; and (2) on the finding of fact to the effect that the character of the community has changed to such an extent since the execution of the above deed that it would be inequitable and unjust to require the enforcement of the restrictions referred to in said deed, if they are otherwise valid.
The restrictions in the original deed from W. P. Shuford to Harold C. Wilburn, Chester Brown, Jr. and Jack H. Brown, dated 16th September, 1949, did not contain a stipulation to the effect that such restrictions were inserted for the benefit of other land to be sold by the grantor, or for the benefit of the grantees therein. On the contrary, the grantor reserved to himself, his heirs and assigns, the right to modify, at any time in the future, the restrictions imposed upon the lot conveyed, and further set forth in said deed that nothing contained therein should be construed as imposing any covenants and restrictions on any property of the grantor adjacent to or in the vicinity of the land conveyed. These provisions clearly negative the idea of a general plan for the development of a residential area in which restrictions were to be applied alike to the grantees and other purchasers of property from the grantor. Maples v. Horton, 239 N.C. 394, 80 S.E.2d 38; Craven County v. First-Citizens Bank & Trust Co., 237 N.C. 502, 75 S.E.2d 620; Phillips v. Wearn, 226 N.C. 290, 37 S.E.2d 895; Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697.
It follows, therefore, that upon the facts disclosed by the record on this appeal, the plaintiff is the only person who is entitled to an order restraining the defendat from violating the restrictions set out in the above deed, if such restrictions are in effect at this time and are enforceable in equity. Maples v. Horton, supra; Phillips v. Wearn, supra; Thomas v. Rogers, 191 N.C. 736, 133 S.E. 18.
In our opinion, however, if it be conceded that the restrictions contained in the deed executed by the plaintiff on 16th September, 1949 were valid, the plaintiff has waived his right to enforce them by acquiescing in the changes made in said restrictions in the contract entered into by and between him and Harold C. Wilburn, Chester Brown, Jr. and Jack H. Brown on 19th December, 1949, which contract expressly permits the construction of filling stations and other enumerated structures on the premises in controversy. Thompson on Real Property (Perm.Ed.), Vol. 7, section 3647, page 137; 14 Am.Jur., Covenants, Conditions and Restrictions, section 295 page 644; Bigham v. Winnick, 288 Mich. 620, 286 N.W. 102; Ballard v. Kitchen, 128 W.Va. 276, 36 S.E.2d 390. Cf. Hamburger v. Kramp, 268 Mich. 611, 256 N.W. 566.
The plaintiff takes the position that he signed the above contract solely and exclusively for the purpose of placing subdivision restrictions on the lots owned by him in Wilshire Park, and for no other purpose whatsoever. We are not unmindful of the statement in the contract purporting to limit the purpose of his signature thereto. Even so, such attempt to limit the purpose for which he executed the contract serves to emphasize the fact that he was familiar with the contents of the agreement and knew that the other parties thereto had, by the terms of the contract, modified or changed the restrictions applicable to said lot in material respect. Therefore, his execution of the contract is sufficient to estop him from denying knowledge of its provisions. 19 Am.Jur., Estoppel, section 21, page 619.
The contract states, 'Whereas, Wilburn and Shuford desire for the benefit of their property and for the benefit of future purchasers and owners of the land shown on said plat that the same shall be developed and used exclusively as hereinafter set out.' The plat referred to is a plat of Section 1 of Wilshire Park, recorded in Book 24, at page 61, in the office of the Register of Deeds of Buncombe County.
The lot now in controversy is shown on the map of Section 1 of Wilshire Park as accurately by metes and bounds as are the lots within the subdivision. And it will be noted that the benefits to be derived from the restrictions thereinafter set out were not limited to the lots in Wilshire Park owned by Wilburn and Shuford, but applied 'to the land shown on said plat,' which shows 45 lots in the proposed residential development, the lot now in controversy, which has a frontage of 325 feet on the north side of the right of way of the then proposed highway and which is now an extension of Patton Avenue, and the lot still owned by the plaintiff adjacent to the lot owned by the defendant, which has a frontage of 200 feet on Patton Avenue.
Furthermore, this contract, with respect to the restrictions imposed, also states, 'These covenants are covenants running with the land and shall be binding on all of the parties hereto and on all persons, firms or corporations claiming by, through or under them,' etc. Here again, Shuford, the plaintiff, did not undertake to limit the covenants and restrictions set out in the agreement to the lots in the subdivision only. 'These covenants' embrace all the covenants and restrictions set out in the instrument and purport to bind the parties thereto until January 1, 1985, at which time a majority of the owners of the lots in the subdivision may agree to change the covenants in whole or in part. Chester Brown, Jr. and Jack H. Brown never owned any lots in Wilshire Park. They joined in the execution of this instrument in order to get the restrictions modified with respect to the lot now in controversy. Otherwise, there was no reason whatever for them to join in the execution of the contract.
In light of the provisions of the foregoing contract, we hold that Finding of Fact No. 12, to the effect that the plaintiff acquiesced in the above agreement and acknowledged receipt of benefits thereunder, and that ...
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