Callaham v. Arenson

80 S.E.2d 619 (1954) 239 N.C. 619

CALLAHAM et ux.
v.
ARENSON et al.

No. 522.

Supreme Court of North Carolina.

March 17, 1954.

B. F. Wellons and J. A. McRae, Charlotte, for defendants, appellants.

Brock Barkley, Charlotte, for plaintiffs, appellees.

JOHNSON, Justice.

Decision here turns on whether or not the plaintiffs' proposed plan for resubdividing their four lots into smaller units violates the restrictive covenant contract made by the original developers of this property, the defendants Boldridge.

The applicable rules of interpretation require that the meaning of the contract be gathered from a study and a consideration of all the covenants contained in the instrument and not from detached portions. Lewis v. May, 173 N.C. 100, 91 S.E. 691. See also Strigas v. Durham Life Insurance Co., 236 N.C. 734, 73 S.E.2d 788; Hartford Acc. & Indem. Co. v. Hood, 226 N.C. 706, 40 S.E.2d 198. It is necessary that every essential part of the contract be considered—each in its proper relation to the others—in order to determine the meaning of each part as well as of the whole, and each part must be given effect according to the natural meaning of the words used. Westinghouse Electric Supply Co. v. Burgess, 223 N.C. 97, 25 S.E.2d 390.

Another fundamental rule of construction applicable here requires that each part of the contract must be given effect, if that can be done by fair and reasonable intendment, before one clause may be construed as repugnant to or irreconcilable with another clause. Westinghouse Electric Supply Co. v. Burgess, supra.

Further, it is to be noted that we adhere to the rule that since these restrictive servitudes are in derogation of the free and unfettered use of land, covenants and agreements imposing them are to be strictly construed against limitation on use. Craven County v. First Citizens Bank & Trust Co., 237 N.C. 502, 75 S.E.2d 620. Therefore, restrictive covenants clearly expressed may not be enlarged by implication or extended by construction. They must be given effect and enforced as written. 14 Am.Jur., Covenants, Conditions and Restrictions, §§ 211 and 212; Annotation: 175 A.L.R. 1191; 26 C.J.S., Deeds, § 163.

Moreover, the rule is that the mere sale of lots by reference to a recorded map raises no implied covenant as to size or against further subdivision. Sedberry v. Parsons, 232 N.C. 707, 62 S.E.2d 88; Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197; Stephens Co. v. Binder, 198 N.C. 295, 151 S.E. 639; 14 Am.Jur., Covenants, Conditions and Restrictions, § 201; Annotation: 57 A.L.R. 764.

And ordinarily the opening and maintenance of a street or a right of way for the better enjoyment of residential property as such does not violate a covenant restricting the property to residential purposes. Raleigh Court Corp. v. Faucett, 140 Va. 126, 124 S.E. 433; Mairs v. Stevens, 268 A.D. 922, 51 N.Y.S.2d 286, Id., 294 N.Y. 806, 62 N.E.2d 238; Annotations: 25 A.L.R. 2d 904; 175 A.L.R. 1191, 1207; 14 Am.Jur., Covenants, Conditions and Restrictions, § 255.

The covenants that control decision here are contained in three paragraphs of the contract. Paragraph "A" restricts the use of the property to residential purposes, and provides that not more than one dwelling unit shall be placed on "any residential building plot." Paragraph "B" establishes the minimum building set-back lines, both front and side. Whereas paragraph "C" fixes the minimum size of the building lots. The minimum requirements as to size are governed by two prescribed standards—one as to width, the other as to total area. The minimum width is 100 feet at the front building set-back line; whereas the minimum area is 20,000 square feet. Therefore a lot 100 feet wide and 200 feet deep meets minimum standards fixed by paragraph "C" as to size. It is noted that all the lots from 1 to 10, inclusive, shown on the map of the original subdivision contain areas largely in excess of 20,000 square feet, yet none of these lots is less than the minimum width of 100 feet. Necessarily, then, the covenant fixing minimum standards as to width and area authorizes resubdivision of the original lots into units as small as 200 feet in, depth.

The plaintiffs' proposed plan of dividing their lots into smaller units comes within the terms of the convenant which prescribes minimum lot areas. Each of the proposed nine lots has an area of at least 20,000 square feet. Each is at least 100 feet wide at the front. Plaintiffs' proposed plan also meets the requirements as to building set-back distances, both front and side. In short, the plaintiffs' plan conforms with all requirements set out in the Boldridge restrictive covenant contract.

The three controlling paragraphs of the contract, when considered each in its proper relation to the others, harmonize and reflect an over-all meaning which is free of inconsistency or repugnancy. See Hickson v. Noroton Manor, 118 Conn. 180, 171 A. 31. The plaintiffs' proposed plan of resubdivision when interpreted in the light of the applicable rules of law comes within the terms of the restrictive covenants under review. As parties bind themselves so must the courts leave them bound.

The case of Starmount Co. v. Greensboro Memorial Park, Inc., 233 N.C. 613, 65 S.E.2d 134, 25 A.L.R. 2d 898, cited and relied on by the defendants, is factually distinguishable.

The defendants' exceptions relating to the exclusion of evidence proffered in support of the plea of estoppel are without merit. A building restriction is a negative easement in land and cannot be created by parol. Turner v. Glenn, supra, 220 N.C. 620, 18 S.E.2d 197; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697. True, in proper cases an estoppel predicated upon grounds of silence or fraud may override the statute of frauds. 19 Am.Jur., Estoppel, § 92; Annotation: 50 A.L.R. 668, 685. But in the instant case the defendants' proffered evidence is wholly insufficient to justify relief on the ground of estoppel. Therefore, if the evidence proffered and refused had been received, the conclusion here reached would not have been changed. So, in law no harm has come to the defendants from the exclusion of the evidence. Pate v. Duke University, 215 N.C. 57, 1 S.E.2d 127. Other exceptions not discussed are overruled.

The verdict and judgment will be upheld.

No error.

BOBBITT, J., took no part in the consideration or decision of this case.