Turner v. . Glenn , 220 N.C. 620 ( 1942 )

BaeNhill, J.

Plaintiffs’ contention that there have been radical changes in the immediate neighborhood such as would render their property unsuitable for residential purposes by reason of the development of a subdivision north of and across the street from their property as a business settlement is answered adversely to them by Brenizer v. Stephens, ante, 395. The court properly excluded any evidence in respect thereto.

Whether restrictive covenants were inserted in deeds executed by the land company for lots located within the subdivision as a part of a general scheme and for the benefit of all is seriously debated. This question might give us serious concern were it necessary to decide the same. However, on this record, we may confine our consideration to the decision of one question: Are the lots owned by plaintiffs located in Sunset Hills subject to restrictive covenants which prohibit their use for business purposes ? This question must be answered in the negative.

The Connor Act, G. S., 3309, is firmly imbedded in our law. Its wisdom has clearly demonstrated itself in the certainty and security of titles in this State which the public has enjoyed since its enactment. It is necessary in the progress of society, under modern conditions, that there be one place where purchasers may look and find the status of title to land. Hence, in applying this act it has become axiomatic with us that “no notice, however full and formal, will take the place of registration.” Austin v. Staten, 126 N. C., 783; Fertilizer Co. v. Lane, 173 N. C., 184, 91 S. E., 953; Wood v. Lewey, 153 N. C., 401, 69 S. E., 268; Harris v. Lumber Co., 147 N. C., 631; Blalock v. Strain, 122 N. C., 283; Buchanan v. Clark, 164 N. C., 56, 80 S. E., 424; Blacknall v. Hancock, 182 N. C., 369, 109 S. E., 72; Davis v. Robinson, 189 N. C., 589, 127 S. E., 697; Lanier v. Lumber Co., 177 N. C., 200, 98 S. E., 593; Mc Clure v. Crow, 196 N. C., 657, 146 S. E., 713; Smith v. Turnage-Winslow Co., 212 N. C., 310, 193 S. E., 685.

The servitude imposed by restrictive covenants is a species of incorporeal right. It restrains the owner of the servient estate from making certain use of his property. It is an interest in land, conveyance of which is within the statute of frauds. Such restraint may not be effectively imposed except by deed or other writing duly registered. Davis v. Robinson, supra; Hall v. Misenheimer, 137 N. C., 183; Drake v. Howell, 133 N. C., 162.

"Where land is laid out in lots, some of which were conveyed by deeds containing uniform restrictions, the grantor agreeing orally as a part of the consideration for the purchases to impose a similar restriction in each subsequent deed made for the remaining lots, such oral agreement constitutes a contract for the sale of an interest in land, and is not enforceable in equity in the absence of some note or memorandum thereof signed by the party to be charged. Sprague v. Kimball, 213 Mass., 380, 100 N. E., 622, 45 L. R. A. (N. S.), 962. Eestrictive covenants cannot be established by parol evidence or otherwise save by a recordable instrument containing adequate words so unequivocally evincing the party’s intention to limit the free use of the land that its ascertainment is not dependent on inference, implication or doubtful construction. Thompson, Real Property, Vol. 7, p. 64; Holliday v. Sphar, 282 Ky., 45, 89 S. W. (2d), 327.

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

In so bolding we are not inadvertent to decisions in other jurisdictions contra. Tbe distinction rests in tbe provisions of tbe Connor Act.

A deed which makes reference to a map or plat incorporates such plat for tbe purpose of more particular description but does not bind tbe seller, nothing else appearing, to abide by tbe scheme of division laid down on tbat map. Tbe purchaser has no right to understand or believe from such reference tbat tbe grantor will in bis future conveyances abide by such plan of division. See Snyder v. Heath, 185 N. C., 362, 117 S. E., 294, and Thomas v. Rogers, 191 N. C., 736, 133 S. E., 18.

No covenant tbat tbe owner will not sell its land except in parcels delineated upon a map of record and with reference to which certain lots have been sold is implied by tbe making of such map and tbe sale of certain lots shown thereon, and the right of tbe owner to dispose of unsold portions of bis lots singly or in bulk or by subdividing them into smaller parcels and selling them in such parcels is complete. Herold v. Columbia Investment & Real Estate Co., 14 L. R. A. (N. S.), 1067, 67 Atl., 607, 16 Am. Gas., 580. See also Anno., 57 A. L. R., 764. Such covenants cannot be implied from tbe mere making and filing of tbe map showing tbe different subdivisions, or by selling lots in conformity therewith. Farquharson v. Scoble, 38 Cal. App., 680, 177 Pac., 310, 14 L. R. A. (N. S.), 1067; Gardner v. Moffiit, 95 A. L. R., 452.

Hence, it follows that any reference to tbe maps of record contained in tbe deeds to plaintiffs or in deeds in their line of title was not sufficient to give notice of tbe alleged restrictions or to impose such restrictions upon tbe land purchased by them.

Tbe Realty Company admittedly took title to tbe property free of restriction. No deed in tbe chain of title to either of tbe lots owned by plaintiff sets forth any particular restrictions or reservations and no reference is made to any other instrument of record which sufficiently discloses what are tbe “customary restrictions in conveyances of lots fronting Madison Avenue in Block 1, Section 1, Sunset Hills,” or what are tbe “usual restrictions of tbe use and reservations placed by A. K. Moore Realty Company on property similarly situated in Sunset Hills.” Notwithstanding tbe general provision in tbe deeds of tbe plaintiffs they took without notice of any restrictions or reservations such as would be binding on them.

As stated, it is tbe duty of a purchaser of land to examine every recorded deed or instrument in bis line of title and be is conclusively presumed to know the contents of such instruments and is put on notice of any fact or circumstance effecting his title which either of such instruments reasonably discloses. He is not, however, required to examine collateral conveyances of other property by any one of his predecessors in title. Even if we should so hold, the record discloses that a reasonable investigation of such collateral conveyances would fail to give sufficient evidence of the alleged restrictive covenants.

In such an investigation an abstractor would naturally look to the conveyances of other property in the immediate vicinity, and particularly to conveyances of property in Block 1, Section 1, facing on Madison Avenue, for information. Such investigation would disclose that Lot No. 7 in Block 1, Section 1, facing on Madison Avenue adjacent to and east of the lots in controversy, and Lot No. 20 in Block 1, Section 2, facing on Madison Avenue across Aycoek Street immediately west of such lots, and Lot No. 10 in Block 1, Section 3, diagonally across Madison Avenue, were all conveyed without restriction; that Lots Nos. 7 and 10 were actually in use as business property and that no lot in Block 1, Section 1, facing on Madison Avenue, was conveyed subject to any specific restriction. Thus it would appear that all lots fronting Madison Avenue in. Block 1, Section 1, as well as adjacent property, was conveyed without restrictive reservation. Still further investigation would disclose that this particular property had been zoned by the city of Greensboro for business purposes.

Hence, the court erred in declining to charge the jury as prayed by the plaintiffs, as follows: “Gentlemen of the jury, the court instructs you that, if you find the facts to be as testified to by the witnesses and as disclosed from the record evidence, it will be your duty to answer the second issue ‘No.’ ”

We have given full consideration to the plea of estoppel entered by the defendants. Plaintiff Turner, as an officer and salesman of the Realty Company, was without authority to make conveyance with or without restrictive covenants. The defendants accepted deeds containing no stipulation binding the Realty Company to insert like provisions in deeds to other property in the subdivision. Their titles rest in the record. We are constrained, therefore, to hold that there is no sufficient evidence to sustain the plea.

The plaintiffs are entitled to a decree adjudging that they are the owners of the property described in the complaint free and clear of any restrictions against the use thereof for business purposes.

Reversed.

ClaeksoN, L, dissents.