Maples v. Horton

Denny, J. This appeal requires the determination of two questions: (1) Do the covenants and restrictions in the deeds for lots sold by the developer, Frank Maples, negative a general plan or scheme for the development of the area of land in question for residential purposes? (2) If so, may the plaintiff enforce such restrictions as personal covenants? In our opinion the answer to the first question must be in the affirmative, and to the second question, in the negative. *398 The law generally applicable to a plan or scheme for imposing restrictions upon land for particular purposes is succinctly stated in 26 C.J.S., Deeds, section 167, page 548, et seq., as follows: “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.” Craven County v. Trust Co., 237 N.C. 502, 75 S.E. 2d 620; Sedberry v. Parsons, 232 N.C. 707, 62 S.E. 2d 88; Higdon v. Jaffa, 231 N.C. 242, 56 S.E. 2d 661; Vernon v. Realty Co., 226 N.C. 58, 36 S.E. 2d 710; Brenizer v. Stephens, 220 N.C. 395, 17 S.E. 2d 471; Franklin v. Elizabeth Realty Co., 202 N.C. 212, 162 S.E. 199; Bailey v. Jackson, 191 N.C. 61, 131 S.E. 567; Johnston v. Garrett, 190 N.C. 835, 130 S.E. 835; Homes Co, v. Falls, 184 N.C. 426, 115 S.E. 184. “That covenants reasonably restricting the ownership, use, or occupancy of land, inserted in deeds as a part of a general scheme or plan of development, for the benefit of all owners of property within the development, are valid is conceded.” Vernon v. Realty Go., supra; 14 Am. Jur., Covenants, Conditions and Restrictions, section 206, page 616. In the instant case, it will be noted that in each deed in which restrictions were inserted, it was also provided that the restrictions or conditions in the deed were inserted therein for the benefit of the remaining land of the grantors, their heirs or assigns, and further that the grantors retain “the right to release any of said conditions and to sell any part of its (sic) remaining land free from all or any conditions at their discretion.” It follows, therefore, that the subdivision involved on this appeal has never been subject to any general plan or scheme whereby the restrictive covenants in the deeds referred to above could have been enforced by the grantees inter se. Phillips v. Wearn, 226 N.C. 290, 37 S.E. 2d 895; Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918. In the case of Humphrey v. Beall, supra, Winborne, J., in speaking for the Court said: “The right to change the restrictions as to lots sold, and the right to sell the unsold lots without restrictions, . . . refute the idea of a general plan for residential purposes to be exacted alike from all purchasers, and to be for the benefit of each purchaser.” Higdon v. Jaffa, supra; Phillips v. Wearn, supra; 14 Am. Jur., Covenants, Conditions and Restrictions, section 202, page 613; 26 C.J.S., Deeds, section 167 (c), page 555; Ringgold v. Denhardt, 136 Md. 136, 110 A. 321. In light of the conclusion we have reached on the first question posed, it is not necessary to discuss what effect the loss of part of the subdivision by foreclosure, the modification of the restrictions contained in the deeds *399 to Wm. F. Bowman, conveying to bim Lots 3 and 4 in Block 1, or the execution of deeds to Lots 9 and 13 in Block 2 without restrictions, had on the purported general plan or scheme for development and sale of the property for residential purposes. Phillips v. Wearn, supra; Humphrey v. Beall, supra; DeLaney v. Hart, 198 N.C. 96, 150 S.E. 702; Ivey v. Blythe, 193 N.C. 705, 138 S.E. 2; Davis v. Robinson, 189 N.C. 589, 127 S.E. 697; Snyder v. Heath, 185 N.C. 362, 117 S.E. 294. The decision in the case of Starmount Co. v. Memorial Park, 233 N.C. 613, 65 S.E. 2d 134, relied upon by the appellant, involved a factual situation distinguishable from that on the present record. Hence, it is not controlling on this appeal. It is apparent that the restrictions contained in the deed from Frank Maples and wife, Christian E. Maples, to Marian Nidy, and incorporated by reference thereto in the deed from Marian Nidy to the defendant Mattie V. Horton, are not enforceable except as personal covenants. Phillips v. Wearn, supra; Thomas v. Rogers, 191 N.C. 736, 133 S.E. 18; Snyder v. Heath, supra. The present plaintiff is the owner of all the unsold lots in the development known as Pine Eidge, Southern Pines, N. C., under and by virtue of the provisions in the last will and testament of her late husband, Frank Maples. However, if she has the right to enforce the restrictions under consideration, it must be as a grantor in the deed to Marian Nidy and not by reason of the fact she is the present owner of the unsold lots in the subdivision. “One cannot at common law maintain any action upon a personal covenant merely by force of the fact that he is the successor in title of the owner with whom such covenant was made.” 14 Am. Jur., Covenants, Conditions and Restrictions, section 39, page 514; Parker v. Beasley, 40 N. Mex. 68, 54 P. 2d 687; Willcox v. Kehoe, 124 Ga. 484, 52 S.E. 896, 4 L.R.A. (N.S.) 466, 4 Ann. Cas. 437; Asher Lumber Co. v. Cornett, 22 Ky. L. Rep. 569, 58 S.W. 438, 56 L.R.A. 672. It is further stated in 14 Am. Jur., Covenants, Conditions and Eestric-tions, in section 43, page 515, that: “The general rule is that only the covenantor or his executors or administrators are bound on a personal covenant. Hence, a personal covenant does not bind the assignee of the covenantor. A personal covenant will not descend to the heir, upon the theory that all personal covenants made by an ancestor terminate with his death. A personal covenant, upon the death of the obligee, goes to his administrator, and he alone is entitled to maintain suit upon the agreement.” Houston v. Zahm, 44 Ore. 610, 76 P. 641, 65 L.R.A. 799; Sturgeon v. Schaumburg, 40 Mo. 482, 93 Am. Dec. 311; Fitzsimmons v. South Realty Corp., 162 Md. 108, 159 A. 111. The authorities seem to hold that a married woman who joins her husband in the execution of a deed to his property, merely to release her *400 inchoate right of dower, conveys nothing and is not bound by the covenants in such deed. 26 Am. Jur., Husband and Wife, section 180, page 801. Likewise, in 41 C.J.S., Husband and Wife, section 39, page 494, el seq., it is said: “As a general rule a married woman joining her husband in the execution of a conveyance of his lands for the sole purpose of releasing her inchoate rights therein is not bound by the covenants contained in such deed, and a title afterward acquired by her will not by force thereof pass to the grantee therein; nor is there any liability thereon in jurisdictions in which the statutes providing for liability of a married woman on her covenants of title are limited to conveyances of her separate estate, . . . Her joinder in the execution of the instrument does not operate as to her by way of passing an estate; it operates as to her, not as a conveyance, but as a release, and does not constitute her a grantor of the premises or vest in the grantee any greater or other estate than such as is derived from the conveyance of the husband, nor, in such case, is the wife a surety or guarantor.” Snoddy v. Leavitt, 105 Ind. 357, 5 N.E. 13; Weidler v. Floran, 105 Ind. App. 564, 13 N.E. 2d 330; Shelton v. Deering, 49 B. Monroe’s Rep. (Ky.) 405; Williams v. Thomas, 285 Ry. 776, 149 S.W. 2d 525; Warner v. Flack, 278 Ill. 303, 116 N.E. 197, 2 A.L.R. 423; Sunfield v. Brown, 171 Okla. 395, 42 P. 876; Humbird Lumber Co. v. Doran, 24 Idaho 507, 135 P. 66; Agar v. Streeter, 183 Mich. 600, 150 N.W. 160, L.R.A. 1915D, 196, Ann. Cas. 1916E, 518. See also Deans v. Pate, 114 N.C. 194, 19 S.E. 146. In Shelton v. Deering, supra, it is said : “. . . a wife uniting with her husband in a conveyance of his land, in which she has no interest but the potential right of dower, incurs no obligation by reason of any collateral and merely personal covenant which may be inserted in the deed, and much less by any representation which it may contain. Such covenants or representations, though in form joint, must be regarded as intended to be the acts of the husband alone, and as operative upon him only and not upon the wife, who unites in the deed for the purpose of barring her right of dower, and cannot be presumed to have entered into all the particulars of a contract in which she has so remote and indirect an interest.” In the ease of Weidler v. Floran, supra, the Indiana appellate Court said: “It can hardly be said that the act of the wife in joining her husband in the execution of a deed in his lands for the sole purpose of releasing her inchoate right (of dower) constitutes her a grantor of the premises or vests in the grantee any greater or other estate than such as is derived from the conveyance of the husband.” The Court then quoted with approval the following statement from Snoddy v. Leavitt, supra: “Her joinder in the deed operated, not as a conveyance, but as a release of her inchoate right (of dower). The whole title was in the husband. *401 His deed without the wife joining therein would have carried the whole and the perfect legal title. If the husband make a deed of his lands, that deed carries the perfect legal title; and hence the joinder of the wife therein is of no consequence at all, unless she survives the husband. Her joinder in the defed is a release of her right to claim one-third of the land in case she survives the husband, and nothing more.” It is clear that the plaintiff, Christian E. Maples, at the time she joined her husband, Frank Maples, in the execution of the deed to Marian Nidy, on 28 August, 1945, conveying to the latter the lots involved in this controversy, had no title interest in the lots that was capable of assignment or transfer. She only had an inchoate right of dower in the lots conveyed which she had the capacity to release, but not to convey. Therefore, in applying the law to the facts revealed by this record, we hold that the restrictions contained in the deed from Marian Nidy to the defendant Mattie Y. Horton are not enforceable by this plaintiff. The judgment of the court below is Affirmed.