Hair v. Hales

LEWIS, Judge. The entry of summary judgment is appropriate only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” G.S. 1A-1, Rule 56(c). The burden of establishing the absence of any issues as to a material fact rests on the moving party. Kidd v. Early, 289 N.C. 343, 222 [433] S.E.2d 392 (1976). An issue of fact is “material” for purposes of determining whether a motion for summary judgment should be denied, “if the facts as alleged would constitute a legal defense or would affect the result of the action or would prevent the party against whom it is resolved from prevailing in the action.” Isbey v. Crews, 55 N.C. App. 47, 49, 284 S.E.2d 534, 536 (1981). Summary judgment should be looked upon with favor where no genuine issue of material fact is presented. Kessing v. National Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). We find no issue of material fact in this case. The long standing rule in North Carolina is that restrictive covenants are an interest in land, conveyance of which is within the Statute of Frauds. Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197 (1942). Restrictive covenants restrain the owner of the servient estate from making certain use of his property. Such restraint may not be effectively imposed except by deed or other writing duly registered. Davis v. Robinson, 189 N.C. 589, 127 S.E.2d 697 (1925). If the restrictive covenant is contained in a separate instrument or rests in parol and not in a deed in the chain of title and is not referred to in such deed, a purchaser has no constructive notice of it and is not bound. Turner v. Glenn, supra at 625. North Carolina has consistently held that registration is the one and only means of giving notice of an instrument affecting title to real estate. Massachusetts Bonding and Insurance Co. v. Knox, 220 N.C. 725, 18 S.E.2d 436 (1942); Bruton v. Smith, 225 N.C. 584, 36 S.E.2d 9 (1945); St. Luke’s Episcopal Church v. Berry, 2 N.C. App. 617, 163 S.E.2d 664 (1968). A purchaser of real property “is not required to take notice of and examine recorded collateral instruments and documents which are not muniments of his title and are not referred to by the instruments in his chain of title.” Morehead v. Harris, 262 N.C. 330, 340, 137 S.E.2d 174, 184 (1964). In the instant case, defendants’ deed made no reference to any restrictive covenants on the property. Furthermore, no other deeds in defendants’ chain of title, nor other registered instruments referenced any restrictions on the property. Plaintiffs contend that the recordation of these restrictive covenants on June 4, 1986 acted as constructive notice to defendants because the covenants were recorded just prior to the recordation of defendants’ deed of conveyance. However, as between the grantor and the grantee, registration is not required to pass title [434] to land. A deed becomes operative to pass title upon its delivery. Newell v. Edwards, 7 N.C. App. 650, 173 S.E.2d 504 (1970). Moreover, as between the parties, even after registration “[t]he ultimate inquiry is not what the records show but what the terms of the original deed are.” Bowden v. Bowden, 264 N.C. 296, 302, 141 S.E.2d 621, 627 (1965). The uncontradicted evidence in this case shows that the deed was executed, acknowledged and dated May 30, 1986, was not in the possession of the plaintiff-grantors after May 30, 1986 and that the recording fees were paid on May 30, 1986 by the grantees. The date on the deed is prima facie evidence of the date of delivery. Williams v. North Carolina State Board of Education, 284 N.C. 588, 201 S.E.2d 889 (1974). The plaintiffs put on no evidence to contradict the date on the face of the deed showing delivery on May 30, 1986. Legal title passed to the defendants prior to the June 4, 1986 recordation of the restrictive covenants. Therefore, defendants purchased the property without notice of the existence of any covenants burdening their title. Summary judgment was proper, and accordingly, we affirm. Plaintiffs’ contention that the defendants failed to plead the Statute of Frauds is without merit. Defendants, in the “Third Defense” contained in their answer, specifically alleged that the restrictive covenants were not on record at the time of the conveyance to the defendants. As explained above, in order for the restrictive covenants to be binding upon purchasers of the servient estate, the covenants must be registered or recorded in a deed or instrument in the grantor’s chain of title in order to comply with the Statute of Frauds. Defendants not only pleaded this defense in their answer, but argued this defense successfully in the hearing on motion for summary judgment. Affirmed. Chief Judge HEDRICK and Judge ORR concur.