Stegall v. Housing Authority of the City of Charlotte , 278 N.C. 95 ( 1971 )

178 S.E.2d 824 (1971)

Werley P. STEGALL and wife, Carolyn H. Stegall, Alden R. Hogan and wife, Mary E. Hogan, and others similarly situated, Plaintiffs,
v.
HOUSING AUTHORITY OF the CITY OF CHARLOTTE, N. C., a public body corporate; the City of Charlotte, a municipal corporation; Summers Development Company, a North Carolina corporation, Defendants, and
Virgil R. Williams, Intervening Defendant.

No. 48.

Supreme Court of North Carolina.

February 10, 1971.

Whitfield, McNeely & Echols, by Paul L. Whitfield, Charlotte, for plaintiff appellants.

James & Williams, by Samuel S. Williams and William K. Diehl, Jr., Charlotte, for Virgil R. Williams, intervening defendant appellee.

Fleming, Robinson & Bradshaw, P.A., by Robert C. Sink, Charlotte, for Housing Authority of City of Charlotte, defendant appellee.

W. A. Watts, Charlotte, for City of Charlotte, defendant appellee.

Sanders, Walker & London, Charlotte, for Summers Development Co., defendant appellee.

SHARP, Justice.

The question presented is whether plaintiffs, who own lots in the northern half of the 18-acre tract conveyed by Garrison to Williams, may enjoin the erection of multi-family units on the southern half of the tract by virtue of the restriction in Williams' deed "that only one single-family residence may be erected on any one lot." Plaintiffs, as grantees of Williams, contend that the restriction is a covenant running with the land which is enforceable by any subsequent grantee of Williams. Defendants contend (1) that it is a personal covenant between Williams and Garrison, not intended for plaintiffs' benefit, and (2) that the restriction is void for vagueness.

A grantee of land cannot benefit from covenants contained in the deed to his vendor "except such as attach to, and run with, the land." 20 Am.Jur.2d Covenants, Conditions, etc. §§ 20, 292 (1965). A restriction which is merely a personal covenant with the grantor does not run with the land and can be enforced by him only. McCotter v. Barnes, 247 N.C. 480, 101 S.E.2d 330; Julian v. Lawton, 240 N.C. 436, 82 S.E.2d 210; 7 Thompson, Real Property § 3168 (1962 Replacement). Whether restrictions imposed upon land by a grantor create a personal obligation or impose a servitude upon the land enforceable by subsequent purchasers from his grantee is determined by the intention of the parties at the time the deed containing the restriction was delivered. Ordinarily this intention must be ascertained from the deed itself, but when the language used is ambiguous it is proper to consider the situation of the parties and the circumstances surrounding their transaction. However, this intention may not be established by parol. Neither the testimony nor the declaration of a party is competent to prove intent. The instrument must be construed most favorably to the grantee, and all doubts and ambiguities are resolved in favor of the unrestricted use of the property. The foregoing rules of construction have been often stated. See Reed v. Elmore, 246 N.C. 221, 98 S.E.2d 360, and cases cited therein; Cummings v. Dorsam, Inc., 273 N.C. 28, 159 S.E.2d 513; Long v. Branham, 271 N.C. 264, 156 S.E.2d 235; Lamica v. Gerdes, 270 N.C. 85, 153 S.E.2d 814; Hege v. Sellers, 241 N.C. 240, 84 S.E.2d 892; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697.

In July 1958, at the time Garrison conveyed the 18 acres by metes and bounds to Williams, no part of the 18 acres had been subdivided into building lots, and there was in existence no map or general plan of development for that tract. The first map of Walnut Hills, Williams' subdivision of the northern portion of the tract, was dated, approved by the Charlotte-Mecklenburg Planning Commission, and recorded on 19 October 1959. From 8 January 1945, the date the Garrisons acquired the 59.77-acre tract from which they sold the 18 acres to Williams, they never subdivided the property into lots or made any plans for developing it themselves. It was divided into three separate tracts by the three sales above noted.

Restrictions in a deed will be regarded as for the personal benefit of the grantor unless a contrary intention appears, and the burden of showing that they constitute covenants running with the land is upon the party claiming the benefit of the restriction. 26 C.J.S. Deeds § 167(3) (1956); 7 Thompson, Real Property § 3152 (1962 Replacement). "These principles apply with especial force to persons who (as here) are not parties to the instrument containing the restriction." Stevenson v. Spivey, 132 Va. 115, 120, 110 S.E. 367, 368, 21 A.L.R. 1276, 1278. In the absence of a general plan of subdivision development and sales subject to uniform restrictions, restrictions limiting the use of a portion of the property sold are deemed to be personal to the grantor and for the benefit of land retained. Sheets v. Dillon, 221 N.C. 426, 20 S.E.2d 344. Furthermore, "where * * * a deed containing a covenant restricting the use of land embraces and conveys all the land affected thereby, such covenant stands only as a personal covenant between the parties." Craven County v. First Citizens Bank & Trust Co., 237 N.C. 502, 516-517, 75 S.E.2d 620, 631.

For all practical purposes, after the Garrisons conveyed the 18 acres to Williams, they had disposed of the entire 59.77-acre tract. The lot retained, which is less than an acre, is useless because encumbered by the railroad right-of-way. Indeed, Garrison testified that he would be glad to give it to the City. Thus, the restriction which the Garrisons inserted in their deed to Williams could not have been for the benefit of any part of the 59.77-acre tract. Having parted with all their interest in the 18 acres the Garrisons had no right to limit its free use by imposing upon it a covenant running with the land except for the benefit of other lands then owned by them. Craven County v. First-Citizens Bank & Trust Co., supra. "[T]he existence of the dominant estate is ordinarily essential to the validity of the servitude granted, and the destruction of the dominant estate releases the servitude." Welitoff v. Kohl, 105 N.J.Eq. 181, 188, 147 A. 390, 393, 66 A.L.R. 1317, 1323. "A restrictive covenant can be enforced only by the owner of some part of the dominant land for the benefit of which the covenant was made. It cannot be enforced by the grantor who created the covenant, nor by his heirs, after he or they have parted with all interest in any land benefited by the covenant." 7 Thompson, Real Property § 3172 (1962 Replacement). Accord, 26 C.J.S. Deeds § 162(3) at 1094 (1956); Kent v. Koch, 166 Cal.App.2d 579, 333 P.2d 411. See 20 Am.Jur.2d Covenants, Conditions, etc. § 290 (1968); Welitoff v. Kohl, supra.

One who seeks to enforce a restrictive covenant "must show that he is the owner of or has an interest in the premises in favor of which the benefit or privilege has been created; otherwise, he has no interest in the covenant and is a mere intruder." Los Angeles University v. Swarth, 107 F. 798, 804 (C.C.S.D.Cal.). Garrison testified that at the time the restriction in question was inserted in Williams' deed he owned property "in the area." The record, however, does not disclose its location or distance from the 18-acre tract. Unless it was close enough to the 18-acre tract to be adversely affected by Williams' disregard of the covenant restricting the use of "any one lot" to "one single-family residence," the Garrisons themselves could not enforce the covenant.

The meager and imprecise language by which the Garrisons attempted to impose restrictions upon Williams' 18 acres makes it impossible to ascertain their real purpose. If the "one-family lot" restriction was inserted for the benefit of other lands retained by the Garrisons it would have been very easy for them to have specified the land. Furthermore, "[T]he word lot has no definite significance with reference to dimensions, and, as an indication of quantity, the term is of the vaguest import and contains no legal or other meaning in this respect. How much and what it includes must be determined by the facts and circumstances of each particular case. A lot may be large or it may be small, but the term is most frequently used to describe a small parcel than a large parcel." 54 C.J.S. at 840 (1948). Had Williams extended Wyanoke Avenue through the 8.38-acre tract and divided it into 30 × 50-foot lots on which he had erected a series of one-family townhouses with party walls, could Garrison have successfully contended that he had violated the restriction against multiple-unit dwellings?

Be that as it may, on this record the Garrisons own "no ascertainable property capable of being benefited" by the restrictions in suit. See Re Union of London & Smith's Bank Limited's Conveyance, 1 Ch. 611, 89 A.L.R. 797. If the Garrisons, as Williams' grantors, could not enforce the restriction against Williams, a fortiorari, plaintiffs, as the grantee of Williams, could not enforce it against Williams.

Plaintiffs Stegall and Hogan own two of the 21 lots comprising the Walnut Hills subdivision. All of these lots are subject to identical restrictions which Williams, pursuant to a general plan of development, specifically imposed upon them individually by number. The owner of any one of these 21 lots may enforce these restrictions against any other owner, for they are covenants running with the land. Tull v. Doctors Building, Inc., 255 N.C. 23, 120 S.E.2d 817; Bailey v. Jackson, 191 N.C. 61, 131 S.E. 567. The adjoining 8.38-acre tract in suit, however, was not made a part of Walnut Hills, and Williams has not subjected it to these restrictions. The ruling of the court below that "the purported restriction contained in clause numbered 2" in the deed from Garrison to Williams was not a covenant running with the 18-acre tract therein conveyed and that plaintiffs have no right to enforce it is correct. The judgment of Fountain, J., is

Affirmed.

MOORE, J., did not participate in the consideration or decision of this case.