Justice v. Carland, 194 N.C. 819 (1927)

Dec. 21, 1927 · Supreme Court of North Carolina

194 N.C. 819

T. C. JUSTICE et al. v. MAYO CARLAND and MAX POLANSKY.

(Filed 21 December, 1927.)

Deeds and Conveyances — Development of Lands — Maps—Lots—Reservation of Lot.

Effect of owner reserving certain lot for the benefit of grantees in deeds containing restrictions in developing certain lands by sale into separate lots.

Appeal by defendants from Shaw, J., at April Term, 1927, of Buu-combe, continuing a temporary restraining order to tbe final bearing.

Tbe judgment contains tbe following recital of facts: “That tbe plaintiffs are tbe owners of property situated on botb sides of Jeffress Avenue in Biltmore Ward, Buncombe County, State of North Carolina; that tbe plaintiffs derived tbeir title by mesne conveyances from tbe defendant, Mayo Garland; that tbe defendant, Mayo Garland, in August, 1921, subdivided and platted said property into lots and laid off on said plat tbe said Jeffress Avenue and registered, or bad registered, tbe said plat in the office of tbe register of deeds, in Book 2, page 79; that at the extreme eastern end of Jeffress Avenue on said plat and between the said eastern end of Jeffress Avenue and the eastern property line of said subdivision, the said Mayo Carland left a small strip of land, approximately 15 feet by 30 feet, and made on said small strip of land on said plat an entry in the following words: 'This space reserved by owner, Avenue stops here.” That the said Mayo Garland sold all the lots on said plat with reference to said plat and referred to said plat in the deeds therefor; that he made, or caused to be made, a public announcement at a public auction of said lots on said plat, and also privately, that the small strip of land between the eastern end of Jeffress Avenue and the property east of said subdivision was reserved for the use and benefit of the purchasers of said lots of said plat and to prevent the colored people living east of said property from coming through and traversing Jeffress Avenue to the Hendersonville Road, and that Jeffress Avenue would never he extended, hut would remain as shown on said plat; that the defendant Mayo Carland, on 30 March, 1927, attempted to convey said small strip of land reserved in said subdivision above mentioned and described, to his codefendant, Max Polansky, by deed which is registered in the office of the register of deeds for Buncombe County; that the defendant, Max Polansky, has developed a large subdivision immediately east of the said Carland subdivision for colored people and has attempted to extend and is threatening to extend said Jeffress Avenue across and over said small strip of land reserved in the Carland plat to his said subdivision and allow the purchasers of lots in his subdivision to use said small strip of land for a street or highway in getting to Jeffress Avenue.”

Roberts, Young & Lane for plaintiffs.

Weaver & Patla'for defendants.

PeR Cueiam.

The presiding judge was of opinion that when the defendant Garland platted and subdivided the property and indicated thereon the location and boundaries of Jeffress Avenue and the place where the avenue ended, and made announcement at the sale of the property that the reserved strip was to be kept for the use and benefit of the purchasers, Garland dedicated the reserved strip to their use and to the use of their successors in title. His Honor held that as the defendant Polansky had purchased with notice the restraining order should be continued to the hearing. We concur in the conclusion that the injunction should be continued, and affirm the judgment.

Affirmed.