East Side Builders, Inc. v. Brown

67 S.E.2d 489 (1951) 234 N.C. 517

EAST SIDE BUILDERS, Inc. et al.
v.
BROWN et ux.

No. 95.

Supreme Court of North Carolina.

November 21, 1951.

John Y. Jordan, Jr., and Bernard & Parker, all of Asheville, for plaintiffs, appellants.

Kester Walton, of Harkins, Van Winkle, Walton & Buck, Asheville, for defendants, appellees.

DENNY, Justice.

The defendants contend the judgment as of nonsuit should be upheld on two grounds: (1) Laches on the part of the plaintiffs; and (2) the failure of the plaintiffs to prove facts sufficient to substantiate their alleged cause of action.

(1) The weight of authority is to the effect that delay in asserting a right will not bar relief where it has not worked an injury to the prejudice or disadvantage of those adversely interested. 30 C.J.S., Equity, § 116, page 531, et seq. "Laches is such delay in enforcing one's rights as works disadvantage to another. * * * to constitute laches a change in conditions must have occurred that would render it inequitable to enforce the claim". 30 C.J.S., Equity, § 112, page 520 et seq. Stell v. First-Citizens Bank & Trust Co., 223 N.C. 550, 27 S.E.2d 524; Clark v. Henrietta Mills, 219 N.C. 1, 12 S.E.2d 682; Teachey v. Gurley, 214 N.C. 288, 199 S.E. 83. There is no evidence to the effect that the defendants have been prejudiced or adversely affected in any manner by the delay in instituting this action. Therefore, the defendants were not entitled to a judgment as of nonsuit on the ground of laches. In such cases, the statute of limitations will control, not laches. Clark v. Henrietta Mills, supra; Teachey v. Gurley, supra.

(2) We think the plaintiffs offered sufficient evidence in support of the allegations in the complaint to withstand a motion for judgment as of nonsuit. There is evidence which tends to show that Block B is a separate division and if such fact is duly found, it would be sufficient to entitle the plaintiffs to have the violation of any restrictive covenant in the defendants' deed enjoined, unless the violation is barred by the statute of limitations or laches. See Stephens Co. v. Myers Park Homes Co. 181 N.C. 335, 107 S.E. 233, 237, where it was held that the respective subdivisional plats "was designed to be, a separate, distinct, and integral subdivision. * * *

"It follows, of course, when one of these subdivisional plats has been recorded, and lots sold with reference thereto, the principles of estoppel and dedication then apply to the particular subdivision covered thereby." Myers Park Homes Co. v. Falls, 184 N.C. 426, 115 S.E. 184; Johnston v. Garrett, 190 N.C. 835, 130 S.E. 835; McLeskey v. Heinlein, 200 N.C. 290, 156 S.E. 489; Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661; Sedberry v. Parsons, 232 N.C. 707, 62 S.E.2d 88.

On the other hand, there is evidence that tends to show that there was a general scheme applicable to the entire development of 1,000 lots, and that several hundred of these lots may have been sold without restrictions. Even so, it does not appear in the record on appeal that a general or key map of the entire development has ever been placed on record or that any lots have been sold by reference thereto, as was the case in Davis v. Robinson, 189 N.C. 589, 127 S.E. 697; Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918; Phillips v. Wearn, 226 N.C. 290, 37 S.E.2d 895.

In order that our citizens may construct their homes in areas that will be secure from the encroachment of business and commercial establishments, they have resorted to the use of restrictive covenants. And the use of such covenants is an inducement to purchase lots in restricted areas and to spend large sums in the construction of homes therein. As said by Brogden, J., in Starkey v. Gardner, 194 N.C. 74, 138 S.E. 408, 409, 54 A.L.R. 806, "This security and freedom ought not to be destroyed by slight departures from the original plan, guaranteed and safeguarded by the restrictive covenants in the deeds under which the property is held. Nor should a property owner be held to have waived his rights, and to have abandoned the protection conferred upon him by such covenants, by reason of disconnected and immaterial violations of the restrictions in the conveyances."

The judgment of nonsuit entered below is reversed and the cause remanded for further proceedings in accord with the applicable principles of law and equity.

Reversed and remanded

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