During thе course of the trial plaintiffs sought to prove by parol the date of the deed executed to the defendants Sellers and wife by the defendants Sides and wife. Objection to the testimony was sustained and became the basis- of рlaintiffs’ Exception No. 7 and Assignment of Error No. 2. Ordinarily, parol evidence is incompetent to prove the *245 contents of a written document. However, in this case the deed itself was later introduced in evidence by the plaintiffs. The exception, therefore, is without merit.
Other exceptions, 1 through 16, were taken to the ruling of the court in sustaining objections to questions asked plaintiffs’ witnesses by their counsel. These exceptions form the basis of plaintiffs’ assignments оf error 1 and 3. In each instance the record fails to disclose what the answers to the questions would have been. In the absence of the answer there is nothing to show that the plaintiffs were prejudiced. Therefore, the exceptions cannot be considered.
Blue v. Brown,
Exception No. 17 is to the ruling of the court in sustaining objection to a question asked plaintiff Spencer Lee Hege by plaintiffs’ counsel, referring to Mr. Sides as follows: “I)id he tell you he had sent thаt deed to Lot No. 11 to his agent, Carson Carpenter, to be delivered to Mr. Allen?” "While the record shows the objection was sustained, the record also shows the following answer: “He told me he sent the deed to his agent, Mr. Carson Carрenter, to be delivered to Mr. Hollis Allen. He didn’t say how the deed was sent.” There is nothing to indicate the answer was made in the absence of the jury. Later on plaintiffs called Mr. Sides as a witness and he testified: “I never had any conversation with a Mr. Hollis P. Allen or with Mr. C. G. Sellers about the sale of the two lots.” Mr. Sides further testified for the plaintiff: “I don’t recall executing the deed, plaintiffs’ Exhibit E, to Lot 11, but it was signed and acknowledged by me and my wife. I mailed or sent this deed to my agent, Mr. Carson E. Carpenter.” There was, therefore, no dispute about the delivei’y of the deed by Sides to his agent, Carpenter. The method of delivery was immaterial. Exception No. 17, therefore, is without merit.
Plaintiffs’ Exceptions Nos. 18, 19 and 20 relate to the testimony of Mr. Prank Orr, an attorney for C. Gr. Sellers and wife, on the ground that Mr. Orr was actively participating as attorney in the trial of the case. In passing on the propriety of Mr. Orr’s testimony, it must be remembered that Mr. Allen had testified as follows: “At the closing, I think Mr. Sellers was present. I am not certain whether he was there or not; I don’t think he was. I remember Mr. Carson Carpenter and Mr. Prank Orr were there at Mr. Orr’s office ... at the end of the deal the money was passed and the deeds dеlivered. Mr. Carpenter passed a restriction, a printed restriction across Mr. Orr’s desk and made the statement, as I remember, that these were supposed to be attached to the deed before they were filed; befоre filing.” Mr. Orr testified: “On or about October 20, 1952, Mr. Sellers, Mr. Carpenter and Mr. Allen came to my office to close the transaction. Mr. Allen had the deed for Lot No. 10. Mr. Carpenter had the deed for Lot No. 11 . . . Mr. Carpenter handed me this deed fоr *246 Lot No. 11 just exactly the way it is here . . . Mr. Alien, handed me the deed for Lot No. 10 ... In the meantime this paper, this deed for Lot No. 11 did not have the names of Mr. and Mrs. Sellers in it. Mr. Carpenter asked me to have my stenographer put those names in there and that is what I did ... In the meantime Mr. Allen held his deed for Lot No. 10. Mr. Carpenter held the deed for Lot No. 11 until we got to the courthouse, and when Mr. Carpenter signed the mortgage and canceled it, I gave Mr. Allen the check for $3,450, he hаnded me the deed for Lot No. 10. Mr. Carpenter handed me this deed for Lot No. 11,1 walked right in the Register’s office and filed the papers for recordation and that is all that happened.” Under the circumstances it was not error fоr Mr. Orr to testify.
Exceptions 21 and 22 relate to the action of the trial judge in sustaining objections to questions asked the defendant Sellers if he did not expect to make a profit out of his investment in lands back of Lot No. 11. It does not aрpear in what way the answer would have been material, or that excluding the testimony was prejudicial.
Exception No. 23 relates to the judgment of nonsuit entered at the close of all the evidence. Judgment of nonsuit was required for a number of reasons. To begin with, none of the plaintiffs were in privity of estate with either the defendants Sides or the defendants Sellers with respect to the title to Lot No. 11. This is a fatal defect in a suit to correct or reform а written instrument. In the case of
Sills v. Ford,
Sides was the owner who originated the development. His deed to the defendants Sellers and wife constitutes the only conveyance in the chain of title. It contains no reservations. Mr. Sides’ assertion in his verified answer was introduced in evidence, as follows: “It is denied that there was any agreement between these answering defendants and H. P. Allen and wife concerning thе restrictions on either of said lots, except the reservations appearing in the deeds.”
Carpenter testified there were no restrictions attached to Lot No. 11 when the deed was delivered or at any other time. Sellers and Orr testified no restrictions were attached. The recorded deed bears them out. To the contrary is the very inconclusive evidence of Allen, who says: “I remember when we got through negotiating the figures that Mr. Carpenter tаking this little printed form out, and tossing it across the desk and saying, ‘This should be attached before the deed is filed.’ I remember that, there was a special reason why I remember it. I did not read the paper. It was similar, very similar, it was an exaсt copy of what I had when I bought the lot before, the first lot. I did not read it. Mr. Carpenter said there were restrictions on it. He said there were restrictions. I am going by what he said.”
When a solemn document like a deed is revised by court of equity, the proof of mistake must be strong, cogent and convincing. What were the restrictions omitted? Allen did not read them. He testified Carpenter says they were restrictions. “I am going by what he said.” The evidence is insufficient to show mutual mistake оr a mistake induced by fraud. When a deed is executed and delivered, neither restrictions nor other material matters can be added by the parties. If restrictions are to be added it must be by another written instrument, or, if added to the originаl, it must be re-executed, re-acknowledged, and re-delivered after the additions.
What effect the entry of the names of the grantees after the execution and acknowledgment of the deed to Lot No. 11 by Sides and wife would hаve on the validity of the deed, and whether, if invalid, Allen and wife and Sides and wife are now in a position to contest its validity, are questions not presented on this record. All parties in their pleadings, evidence and briefs seem to havе treated the deed as valid, contésting only the issue as to whether it is, or should be subject to restrictions.
*248
A restriction of the enjoyment of property must be created in express terms or by plain and unmistakable implication.
Starmount Co. v. Memorial Park,
It is patent the evidence falls short of legal requirements for submission to the jury on the issue as to whether the restrictions were omitted by mutual mistake. There isn’t a suggestion of fraud.
“The very essence of the doctrine allowing relief from inadvertenсe or mutual mistake is the desire of the law to execute the original intention and agreement of the parties.”
Davis v. Robinson,
The remaining question is whether the defendants C. Gr. Sellers and wife in accepting a deed without restriction, nevertheless were charged with such notice of the plans and purposes in the development of Wooded Acres as would make the uniform restrictions applicable to Lot No. 11. As has already been pointed out, no restrictions appear in the chain of title to that lot. No notice, therefore, can be found in the line of title. The recorded map shows no restrictions. “The law contemplates that a purchaser of land will examine each recorded deed or other instrument in his chain of title, and charges him with notice of every fact affecting his title which such examination would disclose. In consequence, a purchaser of land is chargeable with noticе of a restrictive covenant by the record itself if such covenant is contained in any recorded deed or other instrument in his line of title, even though it does not appear in his immediate deed.”
Higdon v. Jaffa,
“If purchasers wish to acquire a right of way or other easement over the lands of their grantor, it is very easy to have it so declared in the deed of conveyance. It would bе a dangerous invasion of rights of property, after many years and after the removal by death or otherwise of the original parties to the deed, and conditions have changed, to impose by implication upon the slippery memory of witnesses such burdens on land.”
Davis v. Robinson, supra; Milliken v. Denny,
*249
Restrictive covenants are not favored. As was said by this Court in
Callaham v. Arenson,
For the reasons given, the judgment of the court below is
Affirmed.