Sedberry v. Parsons

62 S.E.2d 88 (1950) 232 N.C. 707

SEDBERRY et ux.
v.
PARSONS.

No. 530.

Supreme Court of North Carolina.

November 29, 1950.

James L. DeLaney, Charlotte, for plaintiffs, appellees.

Charles T. Myers, Charlotte, for defendant, appellant.

ERVIN, Justice.

These principles are well settled in this jurisdiction.

1. "Where the owner of a tract of land subdivides it and sells distinct parcels thereof to separate grantees, imposing restrictions on its use pursuant to a general plan of development or improvement, such restrictions may be enforced by any grantee against any other grantee, either on the theory that there is a mutuality of covenant and consideration, or on the ground that mutual negative equitable easements are created." 26 C.J.S., Deeds, § 167; Higdon v. Jaffa, 231 N.C. 242, 243, 56 S.E.2d 661; Brenizer v. Stephens, 220 N.C. 395, 17 S.E.2d 471; Bailey v. Jackson-Campbell Co., 191 N.C. 61, 131 S.E. 567; Myers Park Homes Co. v. Falls, 184 N.C. 426, 115 S.E. 184.

2. The right to enforce the restrictions in such case is not confined to immediate purchasers from the original grantor. It may be exercised by subsequent owners who acquire lots in the subdivision covered by the general plan through mesne conveyances from such immediate purchasers. Higdon v. Jaffa, supra.

3. The restrictions limiting the use of land in the subdivision embraced by the general plan can be enforced against a subsequent purchaser who takes title to the land with notice of the restrictions. Higdon v. Jaffa, supra; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697.

4. A purchaser of land in a subdivision is chargeable in law with notice of restrictions limiting the use of the land adopted as a part of a general plan for the development or improvement of the subdivision if such restrictions are contained in any recorded deed or other instrument in his line of title, even though they do not appear in his immediate deed. Higdon v. Jaffa, supra; Sheets v. Dillon, 221 N.C. 426, 20 S.E.2d 344; Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197; Bailey v. Jackson, supra.

This being true, the present appeal presents this solitary question: Was the clause providing that "no subdivision of any part of the above described property (i. e., lot 2 of Block 40 of Myers Park) by sale, or otherwise, shall be made so as to result in a plot having an area of less than half an acre" inserted in the deed from the Stephens Company to the Thies-Smith Realty Company as a part of a general plan that the lots in Block 40 of Myers Park should not be smaller in size than half an acre?

The primary test of the existence of a general plan for the development or improvement of a tract of land divided into a number of lots is whether substantially common restrictions apply to all lots of like character or similarly situated. Phillips v. Wearn, 226 N.C. 290, 37 S.E.2d 895; Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918; 14 Am.Jur., Covenants, Conditions, and Restrictions, section 202; 26 C.J.S., Deeds, § 167.

When proper heed is paid to all pertinent facts shown in the record, it is plain that Block 40 of Myers Park is in fact, and was designed to be, a single subdivision of twenty-one lots. Eleven of the lots were conveyed by the Stephens Company to various purchasers by deeds which embody the clause in controversy, and the reremainder of them were transferred by the Stephens Company to sundry other purchasers by deeds which do not contain such clause or any comparable provision. In consequence, the substantial uniformity in restrictions essential to the existence of a general plan as to the size of lots in the subdivision does not exist, and the question posed by the appeal must be answered in the negative. Stephens Company v. Binder, 198 N.C. 295, 151 S.E. 639.

The validity of this conclusion is not impaired in any degree by the assumption that the maps indicate that each of the twenty-one lots in Block 40 of Myers Park was originally at least half an acre in area. A covenant that the lots in a subdivision shall not be changed in size cannot be implied from the mere circumstance that such lots are sold by reference to a recorded map. Turner v. Glenn, supra; Stephens Company v. Binder, supra.

For the reasons given, the judgment is affirmed.

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