Starmount Co. v. Greensboro Memorial Park, 674

• Citation: 65 S.E.2d 134,233 N.C. 613
• Decision Date: 23 May 1951
• Docket Number: No. 674,674
• Parties: , 25 A.L.R.2d 898 STARMOUNT CO. v. GREENSBORO MEMORIAL PARK, Inc.
• Court: United States State Supreme Court of North Carolina

Page 134

65 S.E.2d 134

233 N.C. 613, 25 A.L.R.2d 898

STARMOUNT CO. v. GREENSBORO MEMORIAL PARK, Inc.

No. 674

Supreme Court of North Carolina.

May 23, 1951

Brooks, McLendon, Brim & Holderness, Greensboro, for plaintiff, appellee.

Harry R. Stanley, Greensboro, for the defendant, appellant.

ERVIN, Justice.

This litigation does not involve the question whether the restrictions invoked by the plaintiff were inserted in the deed to the defendant's antecessors pursuant to a general plan for the development of Friendly Acres as a restricted community or neighborhood. Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661; Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918. The action is bottomed upon a quite different foundation. The plaintiff bases its prayer for relief upon individual and particular covenants constituting an express contract between it and the defendant's predecessors and appearing in the defendant's recorded chain of title.

The plaintiff's position is simply this: At the time of the original sale of the four acre tract, the plaintiff, as grantor, and the defendant's antecessors in title, as grantees, made an express contract imposing specific restrictions upon the use of the four acre tract for the benefit and convenience of the plaintiff in its disposition or use of the other portions of Friendly Acres retained by it. Such contract was embodied in covenants inserted in the deed conveying the four acre tract to the defendant's predecessors. Inasmuch as such deed constituted an essential link in the defendant's chain of title and appeared of record at the time it acquired the four acre tract, the defendant took the four acre tract with notice of the restrictive covenants. The restrictions are reasonable in character and duration, and do not clash with public policy. Since it took the four acre tract with notice of the restrictive stipulations, the defendant can not equitably refuse to perform them. Notwithstanding this, the defendant is about to breach the restrictions by appropriating the four acre tract to prohibited purposes which will diminish the enjoyment and impair the value of the substantial portions of Friendly Acres which the plaintiff still owns. As an original party to the restrictive covenants, the plaintiff is entitled to an injunction to restrain the threatened breach.

The plaintiff's position finds full support in authority and reason. Thomas v. Rogers, 191 N.C. 736, 133 S.E. 18; Firth v. Marovich, 160 Cal. 257, 116 P. 729, Ann.Cas. 1912D, 1190; Whitney v. Union Railway Co., 11 Gray, Mass., 359, 71 Am.Dec. 715; Sanford v. Keer, 80 N.J.Eq. 240, 83 A. 225, 40 L.R.A., N.S., 1090.

This being true, the plaintiff is entitled to an injunction restraining the defendant from using the four acre tract as a means of access to the commercial cemetery on the unrestricted forty acre tract if the restrictions contained in the deed of May 5, 1941, prohibit such use of the four acre tract.

The defendant contends with much earnestness and industry that the deed does not forbid its proposed use of the four acre tract. It asserts primarily that the instrument, properly construed, permits such use. It insists secondarily that the deed leaves the matter in doubt, and that the doubt must be resolved in its favor under the rule that restrictive covenants are to be strictly construed against the party seeking to enforce them. Edney v. Powers, 224 N.C. 441, 31 S.E.2d 372.

We do not deem either of these alternative contentions to be valid. A restriction of the enjoyment of property must be created in...