Hale v. Moore

167 S.E.2d 12 (1969) 4 N.C. App. 374

Aaron M. HALE and wife, Anna S. Hale
v.
Effie Mae Morgan MOORE, and husband, Garland Eugene Moore; Nellie Irene Bellamy and husband, Howard B. Bellamy.

No. 6910SC124.

Court of Appeals of North Carolina.

April 30, 1969.

Purrington, Joslin, Culbertson & Sedberry by William Joslin, Raleigh, for plaintiff appellants.

Manning, Fulton & Skinner by M. Marshall Happer, III, Raleigh, for defendant appellees.

MORRIS, Judge.

At the outset, we note that the restriction which the defendant, Effie Moore, placed on the lot in question in 1953 was not part of a general plan of development. At the time this restriction was put on the two-acre tract which the plaintiff now holds, the defendant, Effie Moore, was not obligated to restrict the balance of her property in any way upon conveyance.

This restrictive covenant, if not inequitable, is enforceable against the plaintiffs. "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. Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197, and cases cited; 14 Am.Jur. 608-609. Such right or interest reserved in a conveyance will be effective as against all who deraign title through the grantee, although the reservation is not expressed in subsequent deeds." Sheets v. Dillon, 221 N.C. 426, 20 S.E.2d 334.

Plaintiffs argue, however, that the character of this neighborhood has changed to such an extent since the imposition of this covenant that the property cannot be reasonably used for residential purposes, and that to enforce this covenant would be inequitable. "The courts have generally sustained covenants restricting the use of property where reasonable, not contrary to public policy, not in restraint of trade and not for the purpose of creating a monopoly— and building restrictions have never been regarded as impolitic. So long as the beneficial enjoyment of the estate is not materially impaired and the public good and interest are not violated such restrictions are valid. Subject to these limitations the court will enforce its restrictions and prohibitions to the same extent that it would lend judicial sanction to any other valid contractual relationship. 14 Am.Jur. 616. Hence, the restriction is not void ab initio. If conditions have arisen or circumstances have developed which make the enforcement thereof inequitable and unjust, * * * the burden of so showing rests upon him who seeks its annulment. Until he has so shown the restriction is binding and effective." Sheets v. Dillon, supra.

Plaintiffs introduced evidence tending to show that the property in question is more valuable for commercial purposes than it is for residential purposes. There was also evidence that the number of businesses in the vicinity of the property has increased considerably since the restriction was put on the lot in 1953. However, evidence was also introduced tending to show that the neighborhood has never been exclusively residential and that it is not exclusively commercial today. The defendants' home is located on the remaining 17 acres of the 25-acre tract which was conveyed to the femme defendant in 1938. The plaintiffs' home is located on a 10-acre tract of land which adjoins the two-acre tract on which this restriction is imposed. There are a number of homes within a short distance of this lot which face U.S. Highway 401. Located southeast of the restricted property and adjoining the balance of the 25-acre tract owned by the defendant and adjoining the 10-acre tract on which the plaintiff's home is located, is Greenbriar Estate, a subdivision, in which there are approximately 260 homes. We hold that there was sufficient evidence from which the trial court could have concluded that "The character of the neighborhood has not changed so substantially as to render the use of the said two acre tract impractical for residential use."

The restriction, not being part of a general plan of development, is personal to the grantor, the femme defendant, and is deemed to be for the benefit of the land retained by the grantor. Sheets v. Dillon, supra. It appears that Garland Eugene Moore had no interest in this property when it was conveyed in 1953, and that he joined in the conveyance only for the purpose of releasing his marital rights in the property. Therefore, the trial court properly concluded that the restriction could be enforced during the lifetime of Effie Moore. Maples v. Horton, 239 N.C. 394, 80 S.E.2d 38.

The evidence offered by the plaintiffs was not so conclusive that only one inference could be drawn therefrom. The parties agreed to have the case heard by the trial judge without a jury. The findings of fact made by the court below are supported by the stipulations and evidence, and these findings of fact support the conclusions of law. We find no error.

Affirmed.

CAMPBELL and PARKER, JJ., concur.