Shipton v. Barfield

208 S.E.2d 210 (1974) 23 N.C. App. 58

Clarence O. SHIPTON and Doris L. Shipton
v.
William J. BARFIELD et al.

No. 7418SC622.

Court of Appeals of North Carolina.

September 18, 1974. Certiorari Denied November 8, 1974.

Smith, Carrington, Patterson, Follin & Curtis by Marion G. Follin, III, Greensboro, for plaintiffs appellants.

McLendon, Brim, Brooks, Pierce & Daniels by G. Neil Daniels, Greensboro, for defendant appellee.

Certiorari Denied by Supreme Court November 8, 1974.

CAMPBELL, Judge.

The plaintiffs contend that the trial court erred in granting the defendant Starmount's motion to dismiss under Rule 12(b)(6) because Starmount Company was legally obligated to enforce the covenants in the deed to the Barfields' predecessors and to seek reformation of covenants alleged to have been entered into by mutual mistake.

It is established that only the original parties to a written instrument, or persons claiming under them in privity, have standing to maintain an action for reformation. Strangers to the chain of title to a lot on which an alleged mistaken restriction was placed are not in privity to such an instrument. Hege v. Sellers, 241 N.C. 240, 84 S.E.2d 892 (1954). In Hege, supra, all lots in a subdivision, except one, were sold with substantially uniform restrictions attached. The plaintiff, in a suit against the developer and his grantee, sought to impose the uniform restrictions on the grantee from whose deed the restrictions were omitted by alleged mistake. Finding no privity between any of the plaintiffs and the defendants, the court affirmed the nonsuit.

The facts as proposed by the plaintiffs here are not distinguishable from that of Hege, supra, except to the extent that there was an alleged mistaken omission in Hege, supra, and there was an alleged mistaken insertion of a provision in the deed here. The type of alleged mistake is irrelevant, however, since the plaintiffs are in either case without standing or authority to force an action to reform the deed to the Barfields' predecessors.

The plaintiffs' argument regarding Starmount's duty and liability under paragraphs 4 and 6 of the restrictive covenants in the deed is equally without merit. In order for the defendant Starmount Company to be liable, a legal duty must be present requiring them to police and enforce provisions in all deeds for the benefit of all landowners in the subdivision. This legal duty must arise expressly by deed or impliedly by law.

The law of third-party beneficiary as it relates to that of restrictive covenants is designed to provide a remedy to the various grantees of a subdividing grantor inter se. "[W]here land within a given area is developed in accordance with a . . . uniform scheme of restriction, ordinarily any one purchasing in reliance on such restriction may sue and enforce the restriction against any other lot owner taking with record notice. . . ." Craven County v. Trust Co., 237 N.C. 502, 513, 75 S.E.2d 620, 628 (1953). This is so because the law treats each landowner as a promissor, promising to abide by the restrictions for the benefit of the third-party beneficiary landowners. The concepts of mutuality of covenant and consideration as well as mutual negative equitable easements have been applied to give landowners the right to sue inter se. Maples v. Horton, 239 N.C. 394, 80 S.E.2d 38 (1953).

Restrictive covenants are really servitudes imposed on the land and as such are treated as easements appurtenant. Consequently, a landowner's cause of action arises out of the easement or use restriction appending to the land of another as a result of his promise in a covenant. See Craven County, supra. This provides no remedy against a subdivider unless he has expressly or impliedly undertaken responsibility for the enforcement of the various covenants.

The North Carolina cases cited by the appellants in their brief involve cases of express covenants to impose uniform restrictions and are not applicable to the facts as alleged here.

The only other remedy available to the plaintiffs is a covenant to enforce the restrictive covenants arising by implication. Restrictions in derogation of the free and unfettered use of land are strictly construed in favor of the unrestricted use of property. Craven County, supra. Such an implied covenant must arise from the words used and is based on the presumed intention of the parties. It is not favored by the law. 21 C.J.S. Covenants § 9, p. 888 (1940). Under the facts as alleged by the appellant, there is no basis to infer from the language of paragraph 4 of the restrictive covenants in the deed to the Barfields' predecessors in title that the defendant Starmount Company intended to covenant that it would protect the interests of the plaintiff. On the contrary, paragraph 4 appears to be a covenant intended for the sole benefit of the defendant Starmount Company.

"A complaint may be dismissed on motion filed under Rule 12(b)(6) if it is clearly without merit; and this want of merit may consist in an absence of law to support a claim of the sort made, or absence of facts sufficient to make a good claim. . . ." Hodges v. Wellons, 9 N.C.App. 152, 157, 175 S.E.2d 690, 693 (1970). Under the facts as the plaintiffs allege them, there is no factual basis by which the plaintiffs have established a duty running to them from the Starmount Company, nor is there such a duty imposed at law. Therefore, the judgment below is affirmed dismissing the complaint as to the defendant Starmount Company.

Affirmed.

PARKER and VAUGHN, JJ., concur.