Thomas v. Rogers
| Decision Date | 12 May 1926 |
| Docket Number | 470. |
| Citation | 133 S.E. 18,191 N.C. 736 |
| Parties | THOMAS v. ROGERS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; Harding, Judge.
Action for specific performance by Mrs. Jacqueline P. Thomas against Paul H. Rogers. Judgment for plaintiff, and defendant appeals. Affirmed.
Lease conveying lot for 10 years free from building restrictions held to violate covenant to use land for residence purposes only.
Action to enforce, by decree of specific performance, contract in writing, by which defendant agreed to accept from plaintiff as lessor, a lease conveying to defendant, as lessee, the possession and use of a certain lot of land situate in the city of Charlotte, free and clear of building restrictions and restrictions affecting the use and occupancy thereof for business purposes, for a period of 10 years. The lease, in writing, tendered by plaintiff to defendant, was in all respects sufficient, in form, to comply with the contract between plaintiff and defendant, with respect thereto. Defendant contended that by reason of certain restrictions, contained in a deed under which plaintiff derived title to the said lot of land, plaintiff was unable to comply, and therefore had not complied with her contract with him; that she was therefore not entitled to the decree.
Upon facts agreed, judgment was rendered as prayed for by plaintiff. From this judgment, defendant appealed to the Supreme Court.
Carrie L. McLean, of Charlotte, for appellant.
Tillett, Tillett & Kennedy and Taliaferro & Clarkson, all of Charlotte, for appellee.
The lot of land involved in this action consists of lot 10, and part of lot 9, in block 1, as shown on the map of the property of Highland Park Company, recorded in Book 127, at page 47, in the office of the register of deeds of Mecklenburg county. The said lot fronts on the north side of East Fourth street, about 115 feet, and lies on the west side of Hawthorne Lane, about 111 feet. This lot was originally owned by the Highland Park Company, a corporation. Plaintiff is now the owner of the lot, having derived her title thereto from a deed executed by the Highland Park Company. This deed contains an express covenant that the party of the second part, his heirs and assigns, shall use the lot of land therein conveyed for residence purposes only, and that any residence erected thereon shall cost not less than the sum specified therein. There is no provision in said deed providing for a forfeiture, or for a reverter upon breach of the conditions or covenants in the deed.
Block 1, which includes the locus in quo, and was originally owned by the Highland Park Company, was laid off into 20 lots by the said company. Some of these lots were conveyed by said company, by deeds, containing no restrictions as to the purposes for which the grantees, their heirs and assigns, might use them, while some of the lots, including the lots which form the locus in quo, were conveyed by deeds which contained restrictions that they should be used only for residential purposes and that residences erected thereon should cost not less than sums specified in the deeds. At the time block 1 was laid off and platted into lots, the Highland Park Company owned a large body of land outside the city limits of Charlotte, but adjacent thereto. This tract of land was laid off into blocks, which were divided into lots. These lots have been sold and conveyed, some by deeds without restrictions. All except two of the deeds of the Highland Park Company, in which any condition or restriction relative to the use and occupancy of the lands conveyed therein were inserted, contained the following provision, to wit:
"The party of the first part expressly reserves to itself all rights, privileges, and easements in and upon its said property not expressly granted to the said party of the second part."
On April 2, 1915, the secretary of state of North Carolina issued a certificate of dissolution of the Highland Park Company, which has been duly recorded. All of the debts of said company have been paid, and the surplus of its assets distributed among its stockholders. Of the three directors of said corporation, who upon the issuance of the certificate of dissolution became trustees in dissolution, two have since died. The surviving trustee, and the executors of the two who have died, have executed releases to the plaintiff of any and all rights which the Highland Park Company had in and to the locus in quo by virtue of the covenants, conditions, or restrictions in the deed under which plaintiff owns the same. A similar release has been executed by all the surviving stockholders of said corporation.
The court, being of opinion and finding as a matter of law that upon the facts agreed, the plaintiff has and can convey to defendant the unrestricted use and occupancy of said lots 9 and 10 of...
To continue reading
Request your trial
-
Wykeham Rise, LLC v. Federer
...in favor of corporations became unenforceable with final dissolution and liquidation of those corporations); cf. Thomas v. Rogers, 191 N.C. 736, 739–40, 133 S.E. 18 (1926) (when corporation that was only party that could have enforced restrictive covenant had been dissolved and ceased to ex......
-
Turner v. Glenn
... ... the grantor will in his future conveyances abide by such plan ... of division. See Snyder v. Heath, 185 N.C. 362, 117 ... S.E. 294 and Thomas v. Rogers, 191 N.C. 736, 133 ... No ... covenant that the owner will not sell its land except in ... parcels delineated upon a ... ...
-
Yacobian v. J. D. Carson Co.
... ... which the sentence ... [205 S.W.2d 925] ... cited by respondent is based is Thomas v. Rogers, ... 191 N.C. 736, 133 S.E. 18, and that was an action to enforce, ... by decree of specific performance, a contract in ... writing, by ... ...
-
Phillips v. Wearn
... ... dissolution and liquidation of the aforesaid corporations ... Snyder v. Heath, supra; Thomas v. Rogers, 191 N.C ... 736, 133 S.E. 18; DeLaney v. Hart, supra ... The ... appellant admits that his contract of purchase ... ...