Cogburn v. Holness

MARTIN, Judge. The question posed by this appeal is whether the “golf course tract” is encumbered by any restriction, easement appurtenant, or rights in the Malvern Hills lot owners requiring the golf course tract to be maintained as such. The pertinent language of the documents constituting plaintiffs’ chain of title must be interpreted in light of the applicable rules of construction to resolve this matter. The trial judge made extensive conclusions of law in construing the documents before him and determined that no restriction, dedication, easement or other right in Malvern Hills lot owners has ever existed with respect to the use of the golf course tract. It is defendant’s contention that the trial judge erred in this conclusion. We cannot agree with defendant. Viewing the documents comprising the record before us, we are unable to find a valid dedication of any rights in the golf course tract to lot owners in Malvern Hills Subdivision. We recognize the rule established in Cleveland Realty Co. v. Hubbs, 261 N.C. 414, 135 S.E. 2d 30 (1964), a case similar to the instant case, that the sale of lots in a subdivision by deed referring to a recorded plat showing lots, streets, and a golf course, and containing restrictions that the developers were dedicating the golf links and the playground for the use and pleasure of the owners of the lots, is a valid dedication of [259] the golf course to the purchasers of lots in the subdivision. However, in the instant case, the plats referred to in the form deeds do not show nor even contain a reference to a golf course. Nor is there language expressly dedicating the golf course to the use of the lot owners in either the form deeds or the plats as the court found in the Cleveland Realty case. Defendant further argues that the descriptive booklet distributed by Malvern Hills, Inc. in conjunction with the sale of subdivision lots effectuated a dedication of certain rights in and to the use of the golf course tract, and at the least, created a valid restriction on its use. We must agree with the trial judge’s conclusion that the booklet amounted to no more than an attractive advertisement of the subdivision. The booklet was never placed on public record in Buncombe County and was in no way referred to in the form deeds and recorded plats, the instruments determining the legal rights created by conveyances of lots in the subdivision. Moreover, the language in the'booklet relating to the disposition of the golf course is vague and ambiguous and thus, unenforceable at law or in equity as a restriction on the use of the same. As was stated by our Supreme Court in Edney v. Powers, 224 N.C. 441, 31 S.E. 2d 372 (1944), “. . . [T]he universal interpretation . . . of . . . restrictions in deeds has been in favor of the free and untrammeled use of the property and against any restriction upon the use thereof, and that any doubt arising or ambiguity appearing will be resolved against the validity of the restriction upon and in favor of the extended use of the property.” The pertinent language recites only that a meeting of lot owners may be held to consider the disposition of the golf course; and as to any proposed transfer of such property, “no definite plan” would be decided upon until a mutually agreeable understanding was effected by the lot owners. As no plan of transfer was ever proposed or mutually agreed upon, we cannot hold that a valid restriction was created by the language in the booklet. We are also unable to find any merit in the contention that certain language appearing in the later deeds and deeds of trust constituting plaintiffs’ chain of title effectively created a restriction on the use of the golf course tract. We note simply that each such reference to the use of the golf course tract was phrased in the following equivocal terms: [260] “Excepting . . . such rights as may have heretofore been granted . . . relating to the use ... [of the] golf course.” [Form deeds used by Malvern Hills, Inc.] “. . . subject to any outstanding right, privilege or easement in any third party (if there should be any such outstanding right, privilege or easement, which the party of the first part does not admit) to have the property ... for use as a golf course.” [Green to Overton, Overton to Jackson and Edney, Jackson and Edney to Cogburn deeds] In view of our interpretation of the plats and form deeds and the booklet, we hold that these later references to the use of the golf course tract are likewise ineffective as a dedication of or restriction on the use thereof. Accordingly, the judgment entered by the trial judge granting specific performance of the subject contract to plaintiffs is Affirmed. Judges Parker and Arnold concur.