Johnston v. Garrett, 190 N.C. 835 (1925)

Dec. 23, 1925 · Supreme Court of North Carolina

190 N.C. 835

KATE P. JOHNSTON, EVELYN JOHNSTON, D. LILLY JOHNSTON, D. P. TILLETT and E. B. GRESHAM v. JESSE W. GARRETT.

(Filed 23 December, 1925.)

1. Deeds and Conveyances — Restrictions — Suits—Actions—Parties—Injunction.

Restrictions in a land development and contained in tbe original deeds as to tbe number of buildings to be placed upon tbe lot sold, are covenants running with tbe lands, and each grantee of sucb lands may enjoin all other sucb grantees from violating tbe restrictions.

3. Appeal and Error — Injunction—Bindings—Review.

Upon exception to the findings of fact by the trial judge in injunction proceedings to restrain the violation Of covenants running with the lot conveyed in a general scheme of development, the Supreme Court on appeal may pass upon the evidence of record in the case.

S. Deeds and Conveyances — Restrictions — Covenants — Review — Evidence — Records—Former Decisions.

Held, in the Supreme Court, from the record in this case, and the opinion in a former case upon the same subject-matter herein, “Myers Park” land was originally sold and conveyed under a general improvement plan and that the deeds containing certain restrictions as to buildings included the locus in quo.

Clarkson, J., did not sit.

Appeal by defendant from order of Lane, JMeokleNburg Superior Court, Spring Term, 1925.

In this action, begun on 2 April, 1925, plaintiffs pray judgment that defendant be perpetually restrained and enjoined from violating certain conditions and restrictions contained in deeds under which defendant claims title to the lot of land described in the complaint. A temporary restraining order was issued by Judge Lane, dated 2 April, 1925, in which defendant was required to show cause at a subsequent date why the said order should not be continued to the final hearing. Pursuant to said order, defendant with his attorneys appeared before Judge Lane, at Charlotte, N. C., on 9 May, 1925. After hearing evidence offered by both plaintiffs and defendant, Judge Lane signed an order continuing the temporary restraining order until the final hearing. From this order, defendant appealed.

J aim M. Robinson and Taliaferro & Glarlcson for plaintiffs.

E. A. Hillcer and D. E. Henderson for defendant.

CoNNOR, J.

Upon the hearing, at which the temporary restraining order was continued, Judge Lane, from the pleadings, records and evidence offered, found as facts to sustain the order from which defendant has appealed (1) that defendant is the owner of lot No. 11 in block 3-A of Myers Park, as 'shown on the map thereof recorded in Book 230, at page 129, in the office of the register of deeds of Mecklenburg County; (2) that plaintiffs are the owners, respectively, of lots Nos. 12, 14 and 16 in said block; (3) that plaintiffs and defendant own their said lots, claiming title thereto under deeds containing certain conditions and restrictions set out in the deeds by which the Stephens Company originally conveyed said lots; (4) that defendant, in violation of said conditions and restrictions and in violation of the rights of plaintiffs, and over their protests and without their consent, is now proceeding to erect on his lot a second house or residence so that there would be, if the same is erected, two bouses or residences on same, tbe second bouse, wben completed, fronting on Edgebill Road; (5) that defendant threatens and intends to subdivide said lot with tbe result that tbe lot adjacent to lot No. 12, owned by plaintiffs, tbe Misses Johnston, will contain less than four-tenths of an acre; and (6) that if defendant proceeds with tbe erection of said bouse and tbe subdivision of said lot according to bis plans, it will all result in irreparable barm and damage to plaintiffs and each of them. There was evidence sufficient to sustain each of tbe foregoing findings. Defendant contends that there was error in continuing tbe restraining order, for that bis Honor did not find that said lots were a part of and included within a general scheme and plan of development of Myers Park, or of tbe subdivision thereof in which said lots are included. His Honor did not specifically find, as alleged in tbe complaint, that tbe Stephens Company, from which both plaintiffs and defendant claim title to their respective lots, in tbe sale and development of Myers Park, or of said subdivision, followed or enforced a general scheme and plan of development, whereby tbe lots in said Park, or in said subdivision, were conveyed subject to conditions and restrictions, set out in tbe deeds therefor, and applicable to all said lots. Evidence, however, was offered, as appears in tbe statement of tbe case on appeal, tending to establish tbe same facts with respect to Myers Park, and said subdivision, as are set out in tbe statement of facts agreed in Stephens Co. v. Homes Co., 181 N. C., 335, and in Homes Co. v. Falls, 184 N. C., 426. Upon these facts this Court has held that tbe subdivisions of Myers Park are each a separate, distinct and integral development, and that Myers Park, consisting originally of 1100 acres was not planned and developed as a unit, composed of these subdivisions. As to tbe several subdivisions, as shown on tbe plats recorded, consisting of lots sold with reference to said plats, it is held that “tbe principles of estoppel and dedication apply.” Stephens Co. v. Homes Co., supra. In Homes Co. v. Falls, supra, it appeared that plaintiff bad secured from all owners of lots in tbe particular subdivision containing tbe locus in quo. duly executed and acknowledged releases, waiving all their rights, if any they bad, to insist upon tbe alleged implied restrictions, and consenting to tbe sale by tbe Stephens Company of tbe lot in controversy as well as of other lots similarly situated. This Court, from tbe evidence, finds, as it may in a case of this character (Tobacco Asso. v. Battle, 187 N. C., 260), that block 3-A in Myers Park, as shown on tbe plat duly recorded and offered in evidence, was planned and developed under a general scheme by which tbe lots composing said block 3-A were sold by tbe Stephens Company and conveyed by deeds containing conditions and restrictions which were inserted therein for tbe protection and welfare of tbe community, and which are covenants running with tbe land. .

Tbe Stephens Company, tbe owner o£ tbe land platted as block 3-A, subdivided said block and sold distinct parcels thereof to separate grantees, imposing restrictions practically identical upon tbe use of each parcel or lot pursuant to a general plan of development or improvement; tbe lots now owned, respectively by plaintiffs and defendant, are included witbin block 3-A, and are beld under deeds, containing practically identical conditions and restrictions, wbicb tbe grantees in said deeds as recited therein understood and agreed were for tbe protection and general welfare of tbe community, and were covenants running with tbe land: These conditions and restrictions, upon these facts, may be enforced by any grantee of any of said lots, included witbin block 3-A, against any grantee of any other lot included in said block. 18 C. J., 394; Homes v. Falls Co., supra.

There was no error in continuing tbe temporary restraining order to tbe final bearing.

Affirmed.

ClabKSON, J., did'not sit.