Rodgerson v. Davis , 27 N.C. App. 173 ( 1975 )

218 S.E.2d 471 (1975) 27 N.C. App. 173

Haywood RODGERSON, Jr., et al.
v.
Robert L. DAVIS et al.

No. 752DC387.

Court of Appeals of North Carolina.

October 15, 1975. Discretionary Review Denied December 2, 1975.

Carter & Archie by W. B. Carter, Jr., Washington, for plaintiffs-appellants and appellees.

Ward, Tucker, Ward & Smith, P.A. by C. H. Pope, Jr., New Bern, for defendants-appellants and appellees, Robert L. Davis and wife, Helen P. Davis.

Discretionary Review Denied by Supreme Court December 2, 1975.

CLARK, Judge.

This is an exceptional case in that with incompatible claims both plaintiffs and defendants move for summary judgment, and yet there is no genuine issue of material fact which would make summary judgment inappropriate under G.S. 1A-1, Rule 56. None of the parties excepts to the conclusion of law in the judgment appealed from that "as between the plaintiffs and the defendants there is no genuine issue as to any material fact." Though each of the parties, plaintiff and defendant, excepted to a so-called finding of fact in the judgment, examination reveals that the finding excepted to by the defendants was a conclusion of law rather than fact, and the finding of fact excepted to by plaintiffs was immaterial; therefore disposition of the case by summary judgment was appropriate. It is noted that in ruling on a motion for summary judgment the trial judge does not make findings of fact, which are decisions upon conflicting evidence, but he may properly list the uncontroverted material facts which are the basis of his conclusions of law and judgment. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972).

The defendants contend that the restriction agreement recorded in Book 618, Page 71, and incorporated by reference in each of the deeds to the grantees of lots in "Swan Acres" was invalid, because it was made and recorded by Copeland and Whitley, Incorporated, when the corporation owned no interest in the subdivision. This contention lacks merit because the important requirement is that the restrictions have a contractual basis for the imposition of the obligation on the grantor and grantee to observe them. This requirement is satisfied by contract implied from the acceptance of the deed containing the restrictions or properly incorporating the restrictions therein by reference. 26 C.J.S. Deeds § 162(1), p. 1084. In this case the deeds to all lot owners incorporated by reference the restrictions imposed by the agreement recorded in Book 618, Page 71. The defendants Davis, who question the validity of the restrictions, accepted their deed for seven lots with the restrictions incorporated therein, and they later conveyed three of these lots by deed with the restrictions incorporated therein.

Further, the defendants Davis take the position that even if the restrictive covenants are valid, the construction of duplexes in "Swan Acres" is not prohibited by the restriction which prohibits the construction of "more than one single unit family residence." To support this contention they rely on Scott v. Board of Missions, 252 N.C. 443, 114 S.E.2d 74 (1960), and Construction Company v. Cobb, 195 N.C. 690, 143 S.E. 522 (1928). In Cobb the court upheld a ruling that the restriction, "``shall be used for residential purposes only ... and there shall not at any time be more than one residence or dwelling-house on said lot....'" did not prohibit erection of an apartment house. In Scott the restriction stated, "There shall not be constructed on said lot more than one (1) dwelling house,..." It was held that there was no restriction limiting the use of the property for residential purposes only and that the construction of the church was not prohibited. In the case at bar a reasonable construction of the restrictive covenants is that they were intended to prohibit multi-family residences and to preserve the single family residential character of the subdivision. "In construing restrictive covenants, the fundamental rule is that the intention of the parties governs, ..." Long v. Branham, 271 N.C. 264, 268, 156 S.E.2d 235, 238 (1967).

The other assignments of error relate to the "not less than 40 or more than 60 feet from the front property line" restriction. Three of the five buildings in "Swan Acres", all owned by plaintiffs, are located more than 60 feet from the front property line. The two duplexes of the defendants Davis are located less than 40 feet from the front property line. Clearly, the defendants Davis and three of the plaintiffs have violated the set-back restrictions, and the other parties, plaintiff and defendant, have acquiesced in these violations.

Where restrictions have been imposed according to a general plan, one of the grantees of lots subject thereto, who has himself violated such restrictions, will not be allowed in equity to complain against similar violations by other grantees. 26 C.J.S. Deeds § 169, p. 1163. We find that all of the parties, both plaintiff and defendant, have waived or abandoned by their conduct the set-back restriction, and that the District Court properly refused to interfere to prevent its violation. A balancing of the equities does not justify enforcement by requiring the movement of any of the buildings in the subdivision. The judgment of the District Court is

Affirmed.

MORRIS and VAUGHN, JJ., concur.