Collins v. Asheville Land Co.

The Southern Improvement Company, a duly organized corporation, received a deed in February, 1886, from J. M. Tierman to a certain piece of land, adjoining the city of Asheville, and at once executed a mortgage upon the land to The Central Trust Company, of New York, as security for certain bonds. A sale was provided for in the mortgage in case of default in the payment of interest or principal of the bonds; and it was further provided, that, until default, The Southern Improvement Company should have the full right to contract for the sale or lease, subject to the lien of the mortgage, of any of the lands at such prices, and upon (564) such terms, as that company might deem fair and reasonable, and upon such sales The Central Trust Company would sufficiently convey by deed or deeds of release the lands so sold from the operation of the mortgage, so that the purchaser might get a title free from encumbrance, the proceeds of the sale to be paid to The Trust Company and to be used in purchasing the bonds at par with the accrued interest and to retire the same. After the execution of the mortgage, and in the same year, The Improvement Company had the land laid off into city lots *Page 417 (numbered) and streets, and a plat thereof made, upon which certain portions were platted and distinguished as streets, and others as lots. Afterwards The Improvement Company offered the lots, exhibiting the plat at the same time, for sale, and did sell to various persons lots marked and numbered on the plat, and in the deeds the grantors made special reference to the plat, and the lots were described as abutting on certain named streets, and as being of certain numbers corresponding with the plat. The Trust Company, according to the agreement in the mortgage, executed releases to The Improvement Company for the lots so sold with recitals in each as to the mortgage, the agreement to release, and describing the lots in the releases in the same words as those in the deeds from The Improvement Company. In 1892, The Improvement Company executed a second mortgage upon the unsold part of the same land to George S. Scott and Harris C. Fahnestock for the security of certain bonds, and in 1896, in a consolidated suit (The Trust Company and Scott and Fahnestock joining as plaintiffs) a decree of foreclosure was entered for the sale of the property, except those parts which had been sold off, the lots which had been sold to the plaintiffs in this action being among those excepted in the decree. Fahnestock, who was a director of The Improvement Company, purchased at the foreclosure (565) sale, and the sale was confirmed by the Court. Fahnestock, after selling some of the lots represented on the plat and described as abutting on streets named on the plat, sold and conveyed to T. L. Durham all the property except the lots which had been sold off, and excepting also certain streets shown on the plat which he had made at the time of the sale to Durham. Durham afterwards conveyed the property to its present owners, The Asheville Land Company, defendant in this suit. Durham and The Asheville Land Company knew at the time of their purchases of the existence of the plat made by The Southern Improvement Company and of the sales made thereunder. The principle of law involved in this case is, we think, the same as that in Conrad v. Hotel Co., 126 N.C. 776. The inconvenience and loss which may arise here from the enforcement of that principle of law will be greater than it was in that case, but that argument would not be allowed to influence us in our decision. The courts of the State, in which the question before us has been presented and decided are divided. In some jurisdictions it has been held that where lots have been sold by *Page 418 reference to a plat representing a division of a large tract of land into subdivisions of streets and lots, like the one before us, the purchaser of a lot does not acquire a right of way over every street laid down upon the plat. Pearson v. Allen,151 Mass. 79. There, the Court said, in support of its position: "In Regan v. Light Co., it was held that the defendant could close a whole series of streets on the plat, leaving open the private ways adjoining the plaintiff's lots to the highway in one direction, and to the next side street in the other." In other courts it is held that a map or plat, referred to in a deed, becomes a part of the deed as if it were written therein, (566) and that, therefore, the plan indicated on the plat is to be regarded as a unity, and the purchaser of a lot acquires a right to have all and each of the ways and streets on the plat, or map, kept open. This view is so well and clearly stated in Elliott on Roads, sec. 120, that we quote it: "It is not only those who buy lands or lots abutting on a street or road laid out on a map or plat that have a right to insist upon the opening of a street or road, but where streets and roads are marked on a plat, and lots are bought and sold with reference to the map or plat, all who buy with reference to the general plan or scheme disclosed by the plat or map, acquire a right to all the public ways designated thereon, and may enforce the dedication. The plan or scheme indicated on the map or plat is regarded as a unity and it is presumed, as well it may be, that all the public ways add value to all the lots embraced in the general plan or scheme. Certainly, as every one knows, lots with convenient cross streets are of more value than those without, and it is fair to presume that the original owner would not have donated land to public ways unless it gave value to the lots. So, too, it is just to presume that the purchasers paid the added value, and the donor ought not, therefore, to be permitted to take it from them by revoking part of his dedication." In Conrad v. Land Co., supra, this Court adopted the view that the purchaser had a right of way over all the streets must be kept open, and cited a case from each of the States of New Jersey and Oregon, in which the same principle had been adopted. We are not disposed, after careful consideration, to alter the decision made in that case. The matter of registration of the plat in Conrad v. Land Co. was mentioned, but we are satisfied that registration of the plat is not essential. (567) Registration is only a means of publication of the plan or scheme, and is not such an instrument as is required to be registered by laws of this State. It is the offer of sale by the *Page 419 plat and the sale in accordance therewith that is the material thing which determines the rights of the parties. The defendant, The Asheville Land Company, had actual notice of the plat and sales thereunder made by The Improvement Company, and is, therefore, fixed with notice of the dedication of the streets. Besides, it had notice from the registration of the deeds from The Improvement Company to purchasers. There is no error in the judgment of the Court below, and the same is Affirmed.