Franklin v. Elizabeth Realty Co.

ClarksoN, J. At tbe close of plaintiffs’ evidence and at tbe close of all tbe evidence, tbe defendants moved for judgment as in case of nonsuit. C. S., 567. Tbe court below allowed tbe motion at tbe close of all tbe evidence, and in this we can see no error. What constitutes a general scheme or plan is stated in 27 E. C. L., under “Vendor and Purchaser,” p. 766, part of see. 531, as follows: “Tbe cardinal test in determining whether a restriction imposed by a grantor in selling lots into which be bas divided a tract of land is in pursuance of a general plan or neighborhood scheme bas been said to be whether tbe grantor’s representation as to tbe restriction is made for tbe purpose of inducing tbe purchasers of tbe several lots to pay higher prices by reason of tbe restriction and their mutual protection on such account. In practice, however, it is frequently difficult to determine *217 whether restrictions in the conveyance of several lots into which a large tract is subdivided were intended as a general restrictive plan or scheme for the benefit of the several grantees or merely for the personal benefit of the grantor. It has been held that the fact that a landowner has, in selling parts of a tract, imposed restrictions on the use of a number of lots does not itself necessarily show that a general restrictive plan or scheme was intended. And it has been held that a general plan or scheme for all the purchasers of lots on a street as platted does not appear from the fact that most of the lots are sold subject to building line restrictions, where no restrictions are shown on the plat and none are imposed on some of the lots first sold and it is further shown that there have been many violations of the restrictions by lot owners and such violations have not been resisted by other purchasers. On the other hand the fact that additional restrictions are incorporated in the conveyance of some of the lots does not show that a common restriction in all of the conveyances was not in pursuance of a general plan and consequently for the benefit of the several grantees. And there may be departure in a few instances in the sale of lots without restrictions without defeating what is otherwise an apparent general scheme of improvement.” We think under all the evidence that appears in this record, the Elizabeth Eealty Company development was a general scheme or plan. Johnston v. Garrett, 190 N. C., 835; Bailey v. Jackson, 191 N. C., 61. In Johnston v. Garrett, supra, at p. 838, the law is stated as follows: “The Stephens Company, the owner of the land platted as block 3-A, subdivided said block and sold distinct parcels thereof to separate grantees, imposing restrictions practically identical upon the use of each parcel or lot pursuant to a general plan of development or improvement; the lots now owned, respectively by plaintiffs and defendant, are included within block 3-A, and are held under deeds, containing practically identical conditions and restrictions, which the grantees in said deeds as recited therein understood and agreed were for the protection and general welfare of the community, and were covenants running with the land. These conditions and restrictions, upon these facts, may be enforced by any grantee of any of said lots, included within block 3-A, against any grantee of any other lot included in said block. 18 C. J., 394; Homes Co. v. Falls, supra (184 N. C., 426).” That the omission of a restriction from a single deed does not destroy the general plan. Bailey v. Jachson, supra; 27 E. C. L., supra. In Starkey v. Gardner, 194 N. C., at p. 79, Brogden, J., clearly makes the following observations when equity takes a hand: “The weight of authority is to the effect that if substantial, radical and fundamental *218 changes have taken place in a development protected by restrictive •covenants that courts of equity will not enforce the restrictions. The underlying reason is, we apprehend, that such changes destroy the uniformity of the plan and the equal protection of the restriction. For instance, if a residential development should, in the course of time, by the growth of a city or other cause, become valuable as business property and business houses should indiscriminately invade the development, then the restriction would bear unequally upon the various owners and equity would not permit the entrenching of such inequality.” Higgins v. Hough, 195 N. C., 652; Stroupe v. Truesdell, 196 N. C., 303. In McLeskey v. Hetinlein, 200 N. C., at p. 292-3, it is said: “When persons desiring to become home owners purchase property in a subdivision protected by certain desirable restrictive covenants, the security of such covenants ought not to be destroyed by slight departures from the original plan, and valid restrictions appearing in all the deeds for lots in such subdivision should not be eliminated and wiped out because of immaterial violations of such restrictions. . . . There is no fad tending to show any violation of the .restriction within the subdivision itself, except the fact that the owners of seven lots have signed releases in order to permit the owner of lot 13 to erect an art studio on said lot. The nature of such building does not appear. However, we are of the opinion that the 'evidence does not show such ‘substantial subversion of fundamental change in the essential character of the property’ as to warrant the removal of the restrictions.” (Italics ours.) In the present action we do not think there is any such departure or violation of the restrictive covenants and conditions in the subdivision itself that plaintiffs can complain of. In practically all of the deeds from the Elizabeth Realty Company, the following clause appears: “12. Provided, however, that any of the conditions and restrictions herein contained may be at any time and in any manner changed by and with the mutual written consent of the parties of the first part, or its successors and the owner or owners for the time being of the lot of land hereby conveyed.” .It is contended by plaintiffs that this proviso authorizing modification by grantor defeats the general plan. This is the most serious contention we have to deal with, but on the present record plaintiffs have suffered no harm on account of this clause. The grantor has not materially changed any restrictive covenants or conditions, and none in regard to the property, not being used for residential purposes. The slight departure of plaintiff, Dr. Lyon, himself, as to the use of his lot for the miniature golf course and Miss Burbank’s “high class, high toned place” are not such that, under the facts *219 of record, affect tbe restrictive covenants and conditions of tbe deeds. Again, plaintiffs knew all about tbe restrictive covenants and conditions in tbeir deeds when they purchased their lots, and should not now be allowed, except for good cause shown, to breach their solemn agreement. Those who have invested their money on the faith of these restrictions, covenants and conditions, are entitled to have the contract performed as written, unless there are equitable reasons to the contrary — none appear in this record. For the-reasons given the judgment is Affirmed.