Shuford v. Asheville Oil Company , 243 N.C. 636 ( 1956 )

91 S.E.2d 903 (1956) 243 N.C. 636

W. P. SHUFORD
v.
ASHEVILLE OIL COMPANY.

No. 89.

Supreme Court of North Carolina.

March 21, 1956.

Harkins, Van Winkle, Walton & Buck, Asheville, for plaintiff.

Williams & Williams, Asheville, for defendant.

DENNY, Justice.

The court below, in refusing to continue the temporary restraining order until the final hearing, rested its decision on two grounds: (1) On the acquiescence of plaintiff in the changes made in the restrictions in the deed executed by him on 16th September, 1949, to Harold C. Wilburn, Chester Brown, Jr. and Jack H. Brown, the grantors of the defendant, by the contract entered into by and between the grantor and the grantees in said deed on 19th December, 1949; and (2) on the finding of fact to the effect that the character of the community has changed to such an extent since the execution of the above deed that it would be inequitable and unjust to require the enforcement of the restrictions referred to in said deed, if they are otherwise valid.

The restrictions in the original deed from W. P. Shuford to Harold C. Wilburn, Chester Brown, Jr. and Jack H. Brown, dated 16th September, 1949, did not contain a stipulation to the effect that such restrictions were inserted for the benefit of other land to be sold by the grantor, or for the benefit of the grantees therein. On the contrary, the grantor reserved to himself, his heirs and assigns, the right to modify, at any time in the future, the restrictions imposed upon the lot conveyed, and further set forth in said deed that nothing contained therein should be construed as imposing any covenants and restrictions on any property of the grantor adjacent to or in the vicinity of the land conveyed. These provisions clearly negative the idea of a general plan for the development of a residential area in which restrictions were to be applied alike to the grantees and other purchasers of property from the grantor. Maples v. Horton, 239 N.C. 394, 80 S.E.2d 38; Craven County v. First-Citizens Bank & Trust Co., 237 N.C. 502, 75 S.E.2d 620; Phillips v. Wearn, 226 N.C. 290, 37 S.E.2d 895; Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697.

It follows, therefore, that upon the facts disclosed by the record on this appeal, the plaintiff is the only person who is entitled to an order restraining the defendant from violating the restrictions set out in the above deed, if such restrictions are in effect at this time and are enforceable in equity. Maples v. Horton, supra; Phillips v. Wearn, supra; Thomas v. Rogers, 191 N.C. 736, 133 S.E. 18.

In our opinion, however, if it be conceded that the restrictions contained in the deed executed by the plaintiff on 16th September, 1949 were valid, the plaintiff has waived his right to enforce them by acquiescing in the changes made in said restrictions in the contract entered into by and between him and Harold C. Wilburn, Chester Brown, Jr. and Jack H. Brown on 19th December, 1949, which contract expressly permits the construction of filling stations and other enumerated structures on the premises in controversy. Thompson on Real Property (Perm.Ed.), Vol. 7, section 3647, page 137; 14 Am.Jur., Covenants, Conditions and Restrictions, section 295 page 644; Bigham v. Winnick, 288 Mich. 620, 286 N.W. 102; Ballard v. Kitchen, 128 W.Va. 276, 36 S.E.2d 390. Cf. Hamburger v. Kramp, 268 Mich. 611, 256 N.W. 566.

The plaintiff takes the position that he signed the above contract solely and exclusively for the purpose of placing, subdivision restrictions on the lots owned by him in Wilshire Park, and for no other purpose whatsoever. We are not unmindful of the statement in the contract purporting to limit the purpose of his signature thereto. Even so, such attempt to limit the purpose for which he executed the contract, serves to emphasize the fact that he was familiar with the contents of the agreement and knew that the other parties thereto had, by the terms of the contract, modified or changed the restrictions applicable to said lot in material respect. Therefore, his execution of the contract is sufficient to estop him from denying knowledge of its provisions. 19 Am.Jur., Estoppel, section 21, page 619.

The contract states, "Whereas, Wilburn and Shuford desire for the benefit of their property and for the benefit of future purchasers and owners of the land shown on said plat that the same shall be developed and used exclusively as hereinafter set out." The plat referred to is a plat of Section 1 of Wilshire Park, recorded in Book 24, at page 61, in the office of the Register of Deeds of Buncombe County.

The lot now in controversy is shown on the map of Section 1 of Wilshire Park as accurately by metes and bounds as are the lots within the subdivision. And it will be noted that the benefits to be derived from the restrictions thereinafter set out were not limited to the lots in Wilshire Park owned by Wilburn and Shuford, but applied "to the land shown on said plat," which shows 45 lots in the proposed residential development, the lot now in controversy, which has a frontage of 325 feet on the north side of the right of way of the then proposed highway and which is now an extension of Patton Avenue, and the lot still owned by the plaintiff adjacent to the lot owned by the defendant, which has a frontage of 200 feet on Patton Avenue.

Furthermore, this contract, with respect to the restrictions imposed, also states, "These covenants are covenants running with the land and shall be binding on all of the parties hereto and on all persons, firms or corporations claiming by, through or under them," etc. Here again, Shuford, the plaintiff, did not undertake to limit the covenants and restrictions set out in the agreement to the lots in the subdivision only. "These covenants" embrace all the covenants and restrictions set out in the instrument and purport to bind the parties thereto until January 1, 1985, at which time a majority of the owners of the lots in the subdivision may agree to change the covenants in whole or in part. Chester Brown, Jr. and Jack H. Brown never owned any lots in Wilshire Park. They joined in the execution of this instrument in order to get the restrictions modified with respect to the lot now in controversy. Otherwise, there was no reason whatever for them to join in the execution of the contract.

In light of the provisions of the foregoing contract, we hold that Finding of Fact No. 12, to the effect that the plaintiff acquiesced in the above agreement and acknowledged receipt of benefits thereunder, and that he actually did receive benefits thereunder, is supported by competent evidence. Consequently, we hold that the plaintiff is now estopped from challenging the validity of the restrictions contained in such agreement.

As to the second question posed, the appellant contends that the grantors of the defendant, by accepting the deed executed on 15th February, 1951, reaffirmed the restrictions as being applicable to the land described in the original deed as well as to the additional land conveyed thereby. We do not so hold. It is true that the second deed conveyed to the defendant's grantors a small strip of land lying between the rear of the lots referred to in the deed and the lot previously conveyed to defendant's grantors, and purports to make such strip of land subject to the restrictions set out in the original deed. But the second deed does not purport to convey to the defendant's predecessors in title any portion of the property described and conveyed by the deed executed on 16th September, 1949. Hence, the above contention will not be upheld as to the land described in the original deed.

The appellant also contends that any change in the character of the neighborhood that occurred prior to the execution of the second deed to the defendant's grantors on 15th February, 1951, may not be considered in determining whether or not the neighborhood has undergone such fundamental changes that it would be inequitable and unjust to require the enforcement of the restrictions contained in the original deed, if they are otherwise in full force and effect, citing Reilly v. Otto, 108 Mich. 330, 66 N.W. 228; Rice v. Brehm, 158 Misc. 672, 287 N.Y.S. 648; Starmount Co. v. Greensboro Memorial Park, 233 N.C. 613, 65 S.E.2d 134, 25 A.L.R. 2d 898. We do not concur in this view. Neither are the above cases controlling on the facts in the present case. The court below properly took into consideration all changes occurring in the character of the neighborhood since 16th September, 1949.

Usually, cases involving alleged violations of building restrictions present such wide difference in facts it is difficult in equity to lay out specific rules that can be applied generally. Ordinarily, each case must be determined on its own facts. Archambault v. Sprouse, 215 S.C. 336, 55 S.E.2d 70, 12 A.L.R. 2d 388. However, in considering restrictive covenants, we adhere to the rule that such covenants being in derogation of the free and unfettered use of the land are to be strictly construed in favor of the unrestricted use of the property. Craven County v. First-Citizens Bank & Trust Co., supra; Edney v. Powers, 224 N.C. 441, 31 S.E.2d 372; Davis v. Robinson, supra; and cited cases. Furthermore, when it is evident that the purpose of inserting restrictions in a deed is to make the locality a suitable one for residential purposes, but owing to the general growth of the city this purpose can no longer be accomplished, even though such restrictions should be rigidly enforced, it would be oppressive and inequitable to give effect to such restrictions were they otherwise in full force and effect. Bass v. Hunter, 216 N.C. 505, 5 S.E.2d 558; Elrod v. Phillips, 214 N.C. 472, 199 S.E. 722; Oldham v. McPheeters, 203 N.C. 141, 164 S.E. 731; Stroupe v. Truesdell, 196 N.C. 303, 145 S.E. 925; Higgins v. Hough, 195 N.C. 652, 143 S.E. 212; Starkey v. Gardner, 194 N.C. 74, 138 S.E. 408, 54 A.L.R. 806; 26 C.J.S., Deeds, § 171c, page 574; 14 Am.Jur., Covenants, Conditions and Restrictions, section 302, page 646.

A valid restriction upon the use of property is not superseded or nullified by the enactment of a zoning ordinance. However, such ordinance may be considered with other competent evidence in determining whether or not there has been a fundamental change in the restricted subdivision, 26 C.J.S., Deeds, § 171, page 577, or in the neighborhood where the property, as in the present case, is not a part of a restricted subdivision. Bass v. Hunter, supra; Elrod v. Phillips, supra. Cf. Brenizer v. Stephens, 220 N.C. 395, 17 S.E.2d 471.

We have carefully considered the findings of the court below with respect to the fundamental changes that have taken place in the area adjacent to and in the immediate neighborhood in which the lot in controversy is located, and have come to the conclusion that the pertinent findings of the court in respect thereto are supported by competent evidence and that such findings support the judgment. Hence, the judgment, in which the court below, in its discretion, denied a continuance of the restraining order theretofore issued until the hearing, but on the contrary dissolved the same, will be upheld. Lance v. Cogdill, 238 N.C. 500, 78 S.E.2d 319, and cited cases.

The judgment below is

Affirmed.