Humphrey v. . Beall

'WiNBORNE, J. The refusal of defendants’ motion for judgment as in case of nonsuit, here assigned as error, present this basic question: Do the covenants and reservations in the deed for lots sold by the developer negative a general plan or scheme for the development of the area of land in question for residential purposes? We are of opinion that as a matter of law the answer is “Yes.” The exception is well taken. Davis v. Robinson, 189 N. C., 589, 127 S. E., 697. As a general rule, “the right of grantees from a common grantor to enforce inter se restrictive covenants entered into by each with the common grantor is confined to cases where there is proof of a general plan or scheme for the improvement of property, and its consequent benefit, and the covenants have been entered into as part of a general plan to be exacted from all purchasers and to be for the benefit of each purchaser, and the complainant has bought with reference to such general plan or scheme and the covenant has entered into the consideration of his purchase.” Vendor and Purchaser, sec. 530; 27 E. C. L., p. 765. “The fundamental theory upon which these developments are founded is that of equality of burden and equality of privilege; that is to say, each property owner is entitled to the same privilege from the encroachment of undesirable buildings or enterprises, and, therefore, each prop *19 erty owner is subjected to tbe same burden or obligation of doing nothing or permitting nothing to be done to change the essential character of the community.” Brogden, J., in Starkey v. Gardner, 194 N. C., 74, 138 S. E., 74. In the present case it is observed that in each deed in which restrictions are inserted, it is provided that at any time and in any manner any of the conditions and restrictions therein inserted may be changed by the mutual written agreement of the grantor and the then owner of the lot conveyed thereby. This provision is notice that the grantee or grantees in any or all of the deeds with the written consent of the Charlotte Consolidated Construction Company may place any kind of building on any lot within the area without right of interference by the owner of any other lot. It is also observed that in more than half of those deeds there is also inserted the further provision that nothing therein contained shall be held to impose any restriction upon any land of the grantor not thereby conveyed. This provision is notice that the Charlotte Consolidated Construction Company expressly reserves to itself the “free and unrestricted use and right of alienation” of the unsold lots, Davis v. Robinson, supra, and may sell without any restriction. The deed under which plaintiff claims contains these covenants. The plaintiff bought with knowledge of them. The plaintiff is charged with notice of the same provisions in the numerous other deeds duly registered. There is no covenant or other instrument that any future conveyance will contain residential restrictions. The unsold lots are located in various sections of the development. The right to change the restrictions as to lots sold, and the right to sell the unsold lots without restrictions, as above stated, 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. The plaintiff relies upon the case of Franklin v. Realty Co., 202 N. C., 212, 162 S. E., 199. On the factual situation the decision there is not controlling here. For these reasons there is error in refusing to grant defendants’ motion for judgment as in case of nonsuit, and in granting permanent injunction. The judgment below is Eeversed.