Reed v. Elmore , 246 N.C. 221 ( 1957 )

Rodman, J.

The question presented for decision is: Do the provisions of the deed from Mrs. Shannon to plaintiff impose mutual restrictive servitudes on the lands then conveyed to plaintiff and retained by Mrs. Shannon, or did the deed merely create mutual personal obligations?

The answer is to be found by ascertaining the intention of grantor and grantee when the sale and purchase was consummated. That must be done by interpreting the language which the parties chose to express that intention. Stephens Company v. Lisk, 240 N.C. 289, 82 S.E. 2d 99; Hine v. Blumenthal, 239 N.C. 537, 80 S.E. 2d 458; Spencer v. Jones, 168 N.C. 291, 84 S.E. 261; Killian v. Harshaw, 29 N.C. 497.

If doubt exists as to the meaning of the language used, it is proper to consider the situation of the parties and the situation dealt with. Monk v. Kornegay, 224 N.C. 194, 29 S.E. 2d 754; Carr v. Jimmerson, 210 N.C. 570, 187 S.E. 800; Seawell v. Hall, 185 N.C. 80, 116 S.E. 189; Patrick v. Ins. Co., 176 N.C. 660, 97 S.E. 657; 26 C.J.S. 1095.

“In passing on the intent and effect of these conveyances, which must be gotten from the four corners of the instrument, we are guided by the rule that in resolution of doubt in interpretation'the instrument must be construed most favorably to the grantee; Sheets v. Walsh, 217 N.C. 32, 38, 6 S.E. 2d 817; Brown v. Brown, 168 N.C. 4, 10, 84 S.E. 25; Krites v. Plott, 222 N.C. 679, 681, 24 S.E. 2d 531.” Seawell, J., in McKay v. Cameron, 231 N.C. 658, 58 S.E. 2d 638.

Restrictive servitudes in derogation of the free and unfettered use of land are to be strictly construed so as not to broaden the limitation on the use. Callaham v. Arenson, 239 N.C. 619, 80 S.E. 2d 619.

With these well-settled principles in mind we look at the deed from Mrs. Shannon to plaintiff as the gauge by which the rights and obligations of the parties are to be measured. We find that the land conveyed, that is, lot 3, is burdened with an easement for lots 1- and 2 to the Pineville-Matthews Road, which right of way is to be used in common with the owner of lot 3. An examination of the Spratt map filed with the record here would indicate this right of way has a width of less than twenty feet; hence, the grantee had an area of eighty feet or more in width adjoining lot 4, fronting on the Pineville-Matthews Road and extending back from the Pineville-Matthews Road to that width for a distance of 540 feet. This area was his to do with as he pleased unless some restriction was imposed on him or on the land itself. Without such a restriction he could build on it or leave it open as he might desire. If he elected to build, to use it for commercial or residential purposes, as suited his whim. Grantor and grantee agreed that this unrestricted right to use the property was not desirable. Hence, following the provisions providing access to the highway for the land which plaintiff had purchased, as well as for lots 1 and 2, a provision was inserted in the deed which imposes a condition or restriction. Plaintiff’s right to use the property which he purchased was circumscribed by this clause: “no structure shall be erected by the grantee within 550 feet of the Pineville-Matthews Road.” Had the restriction stopped there, it might be suggested the parties intended only to limit the right of the grantee but did not intend to impose any restraint on any subsequent owner of lot 3. Any such idea is, however, immediately banished by the very next clause which deals with the land itself and not the owner. It says: “it being understood and agreed that the 100 foot strip leading to said tract of land from the Pineville-Matthews Road shall not be used for purpose of constructing any building thereon.”

That the restriction imposed on plaintiff and on his land could be enforced is not open to debate. It is said in Sheets v. Dillon, 221 N.C. 426, 20 S.E. 2d 344: “The courts have generally sustained covenants restricting the use of property where reasonable, not contrary to public policy, not in restraint of trade and not for the purpose of creating a monopoly — and building restrictions have never been regarded as impolitic. So long as the beneficial enjoyment of the estate is not materially impaired and the public good and interest are not violated such restrictions are valid. Subject to these limitations the court will enforce its restrictions and prohibitions to the same extent that it would lend judicial sanction to any other valid contractual relationship.” The principle there stated has been repeatedly recognized. The factual situations in particular cases have not always called for an application of the principle. Ingle v. Stubbins, 240 N.C. 382, 82 S.E. 2d 388; Higdon v. Jaffa, 231 N.C. 242, 56 S.E. 2d 661; Craven County v. Trust Co., 237 N.C. 502, 75 S.E. 2d 620; Phillips v. Wearn, 226 N.C. 290, 37 S.E. 2d 895; Eason v. Buffaloe, 198 N.C. 520, 152 S.E. 496; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697.

The vast majority of the cases dealing with restrictive covenants grow out of conveyances in which restrictions are imposed on the grantee or on the property conveyed without expressly imposing in the conveyance a similar condition or restriction on the grantor. In those cases, the courts have been called upon to determine whether the grantor intended to impose a restriction for his personal benefit or whether he intended to create a benefit for all of the property that he owned. Where the grantor has, by uniformity of the conditions imposed with respect to a given area, evidenced his intention to create mutual servitudes and benefits, the restrictions are held to be covenants running with the land. Where there is absence of uniform pattern, the intention is not established; hence, the covenants or restrictions or conditions are held to be personal to the grantor. Ingle v. Stubbins, supra; Craven County v. Trust Co., supra; Phillips v. Wearn, supra; Turner v. Glenn, 220 N.C. 620, 18 S.E. 2d 197; Sedberry v. Parsons, 232 N.C. 707, 62 S.E. 2d 88; Eason v. Buffaloe, supra. Uniformity of pattern with respect to a development furnishes evidence of the intent of the grantor to impose restrictions on all of the property and when the intent is ascertained it becomes binding on and enforceable by all immediate grantees as well as subsequent owners of any part of the property; but the fact that there is an absence of uniformity in the deeds does not prevent the owner of one lot from enforcing rights expressly conferred upon him by his contract. “Contractual relations do not disappear as circumstances change.” Vernon v. Realty Co., 226 N.C. 58, 36 S.E. 2d 710. The absence of any reference in the deed for lot 4 to the right of way granted lots 1 and 2 does not, because of want of uniformity, destroy the rights accorded those lots.

It is said in Turner v. Glenn, supra: “A deed which makes reference to a map or plat incorporates such plat for purposes of a more particular description but does not bind the seller, nothing else appearing, to abide by the scheme of division laid down on that map. The purchaser has no right to understand or believe from such reference that the grantor will in his future conveyances abide by such plan of division.” This is an effective if negative way of stating that the grantee who insists that there be inserted in his deed a condition or covenant that the grantor will comply has a right to enforce it. Recognition of the importance of imposing the restriction on the grantor in the deed under which grantee claims is to be found in Stephens Company v. Binder, 198 N.C. 295, 151 S.E. 639. Justice George W. Connor, holding plaintiff grantor was not bound by restrictive covenants, said: “None of the defendants, claiming under the immediate grantee of the plaintiff, has any right to or easement in lots owned by plaintiff, at the date of its conveyance of the lot now owned by said defendant to its grantee, by reason of any express covenant on the part of plaintiff.” (Emphasis added.) Justice H. G. Connor stated the rule in the affirmative when he said, in Milliken v. Denny, 141 N.C. 224: “If purchasers wish to acquire a right of way or other easement over other lands of their grantor, it is very easy to have it so declared in the deed of conveyance.” (Emphasis added.)

Plaintiff, when he purchased, heeded the warnings of Justice Connor and caused to be inserted in the deed to him this provision: “This restriction shall likewise apply to Lot No. 4, retained by the grantor, said Lot No. 4 being adjacent to lands hereby conveyed.” Note the restriction is not on the grantor. It is imposed on the land of grantor. It was a creation of a servitude on the land irrespective of ownership. There is no need to search for grantor’s intent. It is clearly and distinctly expressed.

What was the restriction? Can there be any doubt that the parties (grantor and grantee) meant and said that no building or structure should be erected on either lot 3 or lot 4 within 550 feet of the Pineville-Matthews Road? So construed there would be an open, unobstructed view of the highway. It is alleged and admitted that plaintiff’s home is on lot 3. He has constructed a lake and made other improvements thereon. It may be inferred that the land was purchased for a home and “a quiet and secluded place of abode.” In any event, one who has only a limited view of the highway might well deem an open and unobstructed view across his neighbor’s land of material benefit and hence insist on imposing a servitude on that land as a condition to its purchase, an “ancient window.” Davis v. Robinson, supra.

It will be noted that the servitude is expressly limited to lot 4. It has no relation to lots 5 and 6 which lie to the west of lot 4 and front on the road.

We have found no case in our reports which deals with the factual situation here presented. It might have arisen under the deed referred to in S. v. Suttle, 115 N.C. 784, if the grantee had undertaken to harvest ice from the mill pond.

It was said in Norfleet v. Cromwell, 70 N.C. 634: “The principle is generally conceded, and it is cei'tainly equitable, that when the benefit and burden of a contract are inseparably connected, both must go together, and liability to the burden is a necessary incident to the right to the benefit.” Application of the rule is found in Raby v. Reeves, 112 N.C. 688; Walker v. Phelps, 202 N.C. 344, 162 S.E. 727.

Cases are not wanting, however, on factual situations closely analogous to those we are here considering. In Coles v. Sims, decided in 1854, reported 43 Eng. Rep. 768, the Court was called upon to deal with a deed executed in 1823 in which the parties executed mutual covenants that portions of their respective lands should be laid out as a pleasure ground and thereafter used as a flower garden on which no building-should be erected. The Court held that the covenant was binding on the grantees of the respective covenantors.

In McLean v. McKay, decided by the Privy Council of England in 1873, reported V LRPC 327, the Court was called upon to construe a deed made in 1834. William Forbes, owner of a lot, conveyed a portion thereof to Robert McIntosh. The deed, after describing by metes and bounds the land conveyed, contained this provision: . . and by the true intent which was unanimously agreed upon between the parties that any distance which may remain westwardly to Jury Street should never be hereafter sold, but left for the common benefit of both parties and their successors.” McLean, plaintiff, traced his title to McIntosh, the grantee, and McKay traced his to Forbes, the grantor. Mc-Kay had erected a building on the land adjacent to Jury Street. McLean sought injunctive relief. The Court, in announcing its opinion, said: . . . but construing the clause in the way in which they do, simply as an agreement between the two parties that this space shall be kept open for the advantage of both proprietors, they come to the conclusion that it is one which does not contravene any rule of law, that it creates an equity which binds the present Respondent, and that the Appellant who has the estate of the original vendee is entitled to come to the Court of Equity for its assistance to remove the structure which is placed upon the land in violation of it.”

Nicoll v. Penning, decided in 1880, reported 18 Chancery Appeal Cases 258, factually like the present case, held grantees of the grantor bound by his express covenant that he would, as to land retained, “not erect thereon, or use or permit to be used any building to be erected thereon as a tavern, public-house, or beershop.”

In Mann v. Stephens, decided in 1846, 60 Eng. Rep. 665, the Court was called upon to construe a deed made in 1838 in which the grantor had, with respect to land owned by him adjoining the land sold, provided that it “should forever thereafter remain and be used as a shrubbery or garden, and that no house or other building should be erected on any part of it, except a private house or ornamental cottage, and that only on a certain part of it called The Dell, and so as to be an ornament rather than otherwise, to the surrounding property.” In 1845 defendant, who had acquired the land to which the covenant related, began the construction of a beer shop and a brewery outside of The Dell. Plaintiff, who traced his title to the original covenantee, sought injunctive relief. The Vice Chancellor expressed the opinion “that the erecting of the beer-shop and brewery was a gross violation of the covenant.” An injunction issued.

The annotator, 37 L.R.A. N.S., at p. 23, in speaking with respect to restrictive covenants, says: “Another, but much rarer, class of cases in which restrictive covenants may be enforced by persons not parties thereto is that in which a vendor, instead of imposing the burden on the property sold for the benefit of that retained, reverses the servitude, laying the restriction on the land retained for the benefit of the land sold. It would seem that the same reasoning ought to apply as well in the one case as the other, and that the rule should here be that such restrictions may be enforced by the grantees of the covenantee against the covenantor or his grantees, but that an action may not be maintained to enforce the restriction between grantees of the servient estate.”

In Murphy v. Ahlberg, 97 A. 406 (Pa.), the covenant or restriction was stated thus: “It is further agreed that the said second party, his heirs or assigns, shall have the free and unobstructed right of light, air, and prospect over and across the front of any other property now owned by the parties of the first part, lying north of the above described, and includes lot 1 in said partition plan, and that no buildings shall be erected nearer to Bellefield avenue than the present building now on the same. This restriction shall apply to and bind the heirs and assigns of both parties hereto, but shall not prevent the planting of shrubbery or small trees on the front of said lots.” The Court held that the covenant applied as to property retained by the grantor, and that he could be enj oined from its violation by erecting on the property which he had retained a building tending to reduce the view of his grantee.

“A covenant not to erect a building on grantor’s land in front of the tract conveyed runs with the land, and passes to an assignee without any separate assignment of the covenant.” Headnote, Trustees of Watertown v. Cowen, decided 1834, reported 4 Paige Ch. 510, 27 Am. Dec. 80.

Similar conclusions with respect to restrictions imposed by grantor on himself are to be found in Porter v. Denny, 156 N.Y.S. 1016, and Feinberg v. Board of Education, 276 S.W. 823 (Ky.); Hutchinson v. Ulrich, 21 L.R. A. 391 (Ill.). The easements imposed are coterminous with the estate granted and retained. Ruffin v. R. R., 151 N.C. 330, 66 S.E. 317.

Lots 3 and 4 comprised 102 acres of Mrs. Shannon’s 150-acre tract. The deed from Mrs. Shannon to plaintiff provided a uniform limitation on the use of these two lots. Smaller areas have repeatedly been the subject of a uniform system of development. It is not necessary that all of one’s property be subject to the same plan of development, in order to create restrictive servitudes or easements running with the land in a designated area.

By whatever name described, easements, negative easements, incorporeal rights, or servitudes, the reciprocal burdens and benefits were interest in land which could not be created by parol. Davis v. Robinson, supra; Turner v. Glenn, supra; Borders v. Yarbrough, 237 N.C. 540, 75 S.E. 2d 541; Rege v. Sellers, 241 N.C. 240, 84 S.E. 2d 892.

Being an interest in land, registration of the instrument creating the right was necessary if the owner would protect himself against subsequent purchasers for value. When plaintiff recorded his deed, anyone interested in lot 4 was bound to note, not by implication,- but by express language, that Mrs. Shannon had dealt with, imposed a restriction on lot 4. “Grantees take title to lands subj ect to duly recorded easements which have been granted by their predecessors in title.” Waldrop v. Brevard, 233 N.C. 26, 62 S.E. 2d 512; Starmount Co. v. Memorial Park, 233 N.C. 613, 65 S.E. 2d 134.

Since the deed from Mrs. Shannon to plaintiff, by its express language, dealt with lot 4, it was as much a link in defendant’s title as any other disposition of that lot. Turner v. Glenn, supra, does not, as appellant contends, hold to the contrary. Properly read and understood, that case supports the conclusion here reached. There no restrictions appeared in the deeds under which plaintiff claimed. Defendants sought to impose restrictions by showing knowledge of parol statements and advertisement when the common ancestor made sale of lots other than the lots of plaintiffs. The fact that plaintiffs knew, or might have known of these parol statements made to purchasers of other lots did not fulfill the requirements of the Connor Act. Justice Barnhill says: “A purchaser is chargeable with notice of the existence of the restriction only if a proper search of the public records would have revealed it and it is conclusively presumed that he examined each recorded deed or instrument in his line of title and to know its contents. Acer v. Westcott, 46 N.Y. 384, 7 Am. Rep. 355; Columbia College v. Thacher, 87 N.Y. 311, 41 Am. Rep. 365; McPherson v. Rollins, 107 N.H. 362, 14 N.E. 411; Thompson, Real Property, Vol. 7, p. 106. If the restrictive covenant is contained in a separate instrument or rests in parol and not in a deed in the chain of title and is not referred to in such deed a purchaser, under our registration law, has no constructive notice of it.

“It follows that evidence admitted by the court as to oral statements made by officers of the Realty Company and as to advertisements published in local papers tending to show a general scheme of development of Sunset Hills was incompetent. It has no bearing upon the question presented.”

A slightly different factual situation was presented to the Supreme Court of Pennsylvania, Finley v. Glenn, 154 A. 299. There one Mildred Roselcrans, common ancestor in title of plaintiff and defendant, sold a lot to plaintiff. Plaintiff’s deed contained a covenant restricting the kind of buildings which could be constructed on her lot. The deed contained this further covenant: “. . . that the said grantors, shall and will impose the same building restrictions as above set forth, upon all their other lots or pieces of land fronting upon both sides of Mildred Avenue as shown upon the above mentioned plan of lots ...” The Court said: “The controlling factor in the decision of the case is that the immediate grantors of both plaintiff and defendants were the same. When the latter came to examine the title which was tendered to them, it was of primary consequence that they should know whether their grantors held title to the land which they were to convey. They could determine that question only by searching the records for grants from them. ‘The rule has always been that the grantee . . . must search for conveyances . . . made by any one who has held the title.’ (Citations.) ‘The weight of authority is to the effect that if a deed or a contract for the conveyance of one parcel of land, with a covenant or easement affecting another parcel of land owned by the same grantor, is duly recorded, the record is constructive notice to a subsequent purchaser of the latter parcel. The rule is based generally upon the principle that a grantee is chargeable with notice of everything affecting his title which could be discovered by an examination of the records of the deeds or other muniments of title of his grantor.’ Note, 16 A.L.R. 1013, and cases cited; 2 Tiffany’s Real Property (1920 Ed.), p. 2188. So doing, defendants would find the deed from Rosekrans and his wife to plaintiff which had been recorded. Coming upon this conveyance, it was their duty to read it, not, as argued by appellant and decided by the chancellor who heard the case, to read only the description of the property to see what was conveyed, but to read the deed in its entirety, to note anything else which might be set forth in it. The deed was notice to them of all it contained; otherwise the purpose of the recording acts would be frustrated. If they had read all of it, they would have discovered that the lots which their vendors were about to convey to them had been subjected to the building restriction which the deed disclosed. It boots nothing, so far as notice is concerned, that they did not acquaint themselves with the entire contents of the deed.”

The factual difference between that case and Turner v. Glenn is the express covenant made by the common ancestor as to the remainder of his property and the absence of such express covenant in Turner v. Glenn. That fact makes the difference in the decisions in the two cases. Similar conclusions have been reached by the courts of a majority of our sister states. See 16 A.L.R. 1013, and cases there cited; also, Harp v. Parker, 128 S.W. 2d 211 (Ky.); Phillips v. Lawler, 244 N.W. 165 (Mich.); Black v. Condon, 58 So. 2d 93 (Miss.); Adams v. Rowles, 228 S.W. 2d 849 (Tex.); 17 Am. Jur. 1021.

What more could plaintiff have done to protect his rights? Defendant, when he purchased, not only had constructive, but in fact had actual knowledge of the servitude which Mrs. Shannon had imposed on the property which he was purchasing. He cannot now complain that the court does not permit him to ignore the rights which plaintiff acquired when he purchased. The judgment is

Affirmed.