Cummings v. Dosam, Inc.

159 S.E.2d 513 (1968) 273 N.C. 28

Hugh M. CUMMINGS, III and wife, Rebecca C. Cummings
v.
DOSAM, INC.

No. 849.

Supreme Court of North Carolina.

February 28, 1968.

Ross, Wood & Dodge, Graham, and Fred Darlington, III, Burlington, for plaintiff appellants.

Sanders & Holt and R. Chase Raiford, Burlington, for defendant appellee.

LAKE, Justice.

A grantee, who accepts a deed containing otherwise valid covenants purporting to bind him, thereby becomes bound for the performance of such covenants. Cleveland Realty Co. v. Hobbs, 261 N.C. 414, 135 S.E.2d 30; Barrier v. Randolph, 260 N.C. 741, 133 S.E.2d 655. Such a covenant restricting the use which the grantee may make of the land so conveyed to him is deemed a grant by him of a negative easement in such property. Ring v. Mayberry, 168 N.C. 563, 84 S.E. 846. See also: Callaham v. Arenson, 239 N.C. 619, 80 S.E.2d 619; Craven County v. First Citizens Bank & Trust Co., 237 N.C. 502, 75 S.E.2d 620. It necessarily follows that such a covenant which purports to restrict the use he may make of other land owned by him is to be deemed a grant or attempted grant by him of such an easement in that land. Thus, the construction and the sufficiency of the provision are to be determined by the principles of law applicable to the creation of such an easement by deed.

The law looks with disfavor upon covenants restricting the free use of land. Hege v. Sellers, 241 N.C. 240, 84 S.E.2d 892; Julian v. Lawton, 240 N.C. 436, 82 S.E.2d 210. In Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197, this Court, speaking through Barnhill, J., later C. J., said, "Restrictive 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." It is well established that such covenants are to be strictly construed in favor of the free use of the land. Lamica v. Gerdes, 270 N.C. 85, 153 S.E.2d 814; Hullett v. Grayson, 265 N.C. 453, 144 S.E.2d 206; Shuford v. Ashville Oil Co., 243 N.C. 636, 91 S.E.2d 903; Ingle v. Stubbins, 240 N.C. 382, 82 S.E.2d 388; Callaham v. Arenson, supra; Craven County v. First Citizens Bank & Trust Co., supra; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697. Any doubt or ambiguity will be resolved against the validity of the restriction. Edney v. Powers, 224 N.C. 441, 31 S.E.2d 372. Thus, if the nature and extent of the intended restriction cannot be determined with reasonable certainty from the language of the covenant, it will not serve as the basis for the issuance of an injunction forbidding the owner of the land to use it for a purpose otherwise lawful and proper. Hullett v. Grayson, supra.

The covenant by the grantee in the deed from the plaintiff to Merrimac is far from clear. Does it impose a duty upon the grantee to construct buildings for retail business establishments, or is it intended to limit its right to do so ? Does it limit the total number of buildings to four, or does it mean that each building is to contain no more than four units for the housing of retail business establishments? Does the mandate or limitation apply to each tract separately, or to the combined tracts as one unit?

It is equally well established that a deed granting an easement must describe the land burdened with the easement. In Gruber Inc. v. Eubank, 197 N.C. 280, 148 S.E. 246, Brogden, J., speaking for the Court, said, "An easement, of course, is an interest in land, and, if it is created by deed, either by express grant or by reservation, the description thereof must not be too uncertain, vague and indefinite." In Thompson v. Umberger, 221 N.C. 178, 19 S.E.2d 484, Barnhill, J., later C. J., speaking for the Court, said:

"When the easement—here a passageway—is created by deed, either by express grant or by reservation, the description thereof must not be so uncertain, vague and indefinite as to prevent identification with reasonable certainty. * * *

"If the description is so vague and indefinite that effect cannot be given the instrument without writing new material language into it, then it is void and ineffectual either as a grant or as a reservation. * * *

"The description must either be certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which it refers.

"* * * * * *

"If the ambiguity in the description in a deed is patent, the attempted conveyance or reservation, as the case may be, is void for uncertainty. And a patent ambiguity is such an uncertainty appearing on the face of the instrument that the court, reading the language in the light of all the facts and circumstances referred to in the instrument, is unable to derive therefrom the intention of the parties as to what land was to be conveyed. This type of ambiguity cannot be removed by parol evidence since that would necessitate inserting new language into the instrument which under the parol evidence rule is not permitted." (Emphasis added.)

G.S. § 8-39 provides that in an action for the possession of or title to land, parol evidence may be introduced to "identify the land sued for, and fit it to the description contained in the paperwriting offered as evidence of title." However, as we said in McDaris v. Breit Bar "T" Corporation, 265 N.C. 298, 144 S.E.2d 59, "The purpose of parol evidence is to fit the description to the property, not to create a description." As Higgins, J., speaking for the Court in Deans v. Deans, 241 N.C. 1, 84 S.E.2d 321, said with reference to the sufficiency of a description in a deed, "The description must identify the land, or it must refer to something that will identify it with certainty." The same principle applies to the description of the servient estate in a deed granting an easement.

The covenant upon which the plaintiffs rely purports to impose a restriction upon the use of "this tract [i. e., the land conveyed by the grantors to Merrimac] and adjoining tracts being acquired by Grantee (containing in the aggregate approximately 10 acres)." Upon the basis of deeds offered in evidence by the plaintiffs, the superior court found that the tract now in question, and tracts separating it from the land conveyed by the plaintiffs to Merrimac, were conveyed to Merrimac by other grantors prior to the execution of the deed to Merrimac from the plaintiffs. Does the expression "adjoining tracts being acquired" by the grantee point with certainty to tracts already owned by the grantee? The term is patently ambiguous. On its face, it applies, at least equally well, to other lands which the grantee may then have been in the process of acquiring or attempting to acquire. It must be interpreted as of the date the deed containing it was executed. See 23 Am.Jur.2d, Deeds, § 222. If the description was not sufficiently certain at that time, it does not become so later by the occurrence or nonoccurrence of some other event. Thus, the fact that Merrimac actually did not thereafter acquire other "adjoining tracts" does not establish that the tracts previously acquired by it were the ones contemplated by the expression "tracts being acquired." As of the date this deed was executed, that expression does not point with certainty to the tracts already deeded to Merrimac by other grantors.

A patent ambiguity in the description of the land to be burdened by the restriction cannot be removed by parol evidence. Thompson v. Umberger, supra. Thus, the covenant upon which the plaintiffs rely fails, insofar as it relates to tracts other than that conveyed by the plaintiffs to Merrimac, for the reason that if does not contain a sufficient description of the intended servient estate.

When Merrimac conveyed to Plaza Associates, the grantors of the defendant, its deed provided that it was made "subject to those certain restrictions contained in the deed" from the plaintiffs to Merrimac. The recorded deed to Plaza Associates, the defendant's grantor, being in the defendant's chain of title, the defendant is charged with notice of its provisions, including the reference to restrictions contained in the deed from the plaintiffs to Merrimac. See Sedberry v. Parsons, 232 N.C. 707, 62 S.E.2d 88; Turner v. Glenn, supra. Consequently, the defendant is charged with notice of that deed and of the restrictive covenants therein. Thus, if the deed from the plaintiffs to Merrimac were sufficient in itself to create a restriction upon the use of the tract now owned by the defendant, the defendant would have taken its title subject to that restriction. However, for the reasons above stated, that deed did not fasten such restriction upon the tract now owned by the defendant. The provision in the deed from Merrimac to Plaza Associates did not initiate a restriction upon the defendant's land by extending to it whatever restrictions may have been fastened by the plaintiffs' deed to Merrimac upon the tract conveyed by them to Merrimac.

In St. Louis Union Trust Co. v. Foster, 211 N.C. 331, 190 S.E. 522, a valid restriction was imposed upon a 13 acre tract by a recorded agreement between its owner and the owner of adjoining property. Subsequently, the owner of the 13 acre tract conveyed a 500 acre tract, which included the 13 acres, by a deed which provided that the larger tract was conveyed "subject to all the conditions, restrictions, and stipulations" contained in the recorded agreement previously made with reference to the 13 acre tract. This Court held that the restrictions were not thereby extended to and imposed upon the larger tract. See also: Ferraro v. Kozlowski, 101 N.J.Eq. 532, 138 A. 197; Morrill Realty Corp. v. Rayon Holding Corp., 254 N.Y. 268, 172 N.E. 494; 26 C.J.S. Deeds §§ 162(1) and 163 a, Note 34.

The effect of the provision in the deed from Merrimac to Plaza Associates was merely to put Plaza Associates, and its successors in title, upon notice of whatever restrictions may have been imposed by the deed from the plaintiffs to Merrimac upon all or any part of the land so conveyed by that company to Plaza Associates. For the reasons above mentioned, the deed from the plaintiffs to Merrimac imposed no restrictions upon the tract subsequently conveyed by Plaza Associates to the defendant.

Our conclusion that the deed from the plaintiffs to Merrimac did not impose any restriction upon that company's free use of the tract now owned by the defendant makes it unnecessary for us to consider the plaintiffs' contentions that the defendant is not a purchaser for value and that it is liable upon the covenant of Merrimac by reason of the fact that officers and majority stockholders of the defendant, were also officers and stockholders of Merrimac and were partners in Plaza Associates.

The plaintiffs did not except to any finding of fact by the superior court. These findings support the conclusions of law assigned as error by the plaintiffs. There was no error in the denial of the injunctive relief sought by the plaintiffs against this defendant.

Affirmed.

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