*1 SPRING SESSION 1970 N.C-App.] Long Long
Mаbrone v. and Helms v. contingency it tion, survivorship, peril, or deliverance from is gift supra. not irrevocable as is a inter vivos. Thomas Houston, v.
[3] The evidence sufficient to support finding of fact judge give give trial that “James Lewis Atkins intended to and did deposit said certificates and represented thereby the funds defendant Della A. Parker” and his conclusion that “James Lewis gift deposit Atkins made causa mortis said certificates of and thereby represented the funds to his Della sister, A. Parker.” supported by comрe- findings judge were of fact the trial in 1 Index Strong, stated applicable evidence. The rule is tent 2d, Error, and Sec. 57: supported by conclusive if findings of fact are
“The court’s by such find- judgment supported and any competent evidence, though there is еvidence ings affirmed, contra, will be even conclusions, we are of the of the facts and Upon examination judge correctly applied the facts opinion and so hold that the conclusions of law. making his that he found Affirmed. JJ., concur. Geаham,
Beitt MARRONE, Wife, MAE JR. ARTHUR MARRONE JIMMY V. Case #1 v. CHARLES E. LONG - and- Wife, DELANA HELMS v. FRANKLIN HELMS CHARLES Case #2 E. LONG CHARLES 7020SC21
No. April 1970)
(Filed 1 covenants restrictive 19— 1. Deeds § except by an instrument of established cannot be covenants Restrictive evincing unequivocally party’s containing adequate words so record is not its ascertainment оf the land free use to limit the intention implication inference, doubtful construction. or on — — re- lots subdivision covenant 20— restrictive 3. Deeds § grantor from corded plaintiffs a lot there- tract of a 15-aere the owners Where subject conveyanсe provided, is made “This deed which recorded IN THE COURT OF APPEALS Long Marrone and Helms v. *2 following land, restrictions which shall run with the violation exposure damages any which restrictions shall be to suits for and all adjoining property owners, who shall be defined as the Grantors herein subsequent might acquire any any portion or original their who Grantees plus tract,” map 15 acre subdivision of the ^15-acre tract was thereon, thereafter recorded with no restrictive shown covenants and the conveyed lots, including thereafter lot, owners other defendant’s deeds covenants, which contained no restrictive plaintiff’s applicable lot, deed are held not to defendant’s the deed having expressly imposed plaintiff any not restrictions on the remainder of the 15-acre tract. J., Mobris, dissenting. August Crissman, by plaintiffs J., 1969 Civil Ses- County Superior
sion Court. of UNION were cases, In each of these which consolidated both for trial and upon appeal, plaintiffs contend defendant’s property is sub- ject They which he to restrictivе covenants has breached. seek dam- ages an defendant requiring comply order with the covenant. agreed for the to be heard on parties
The the record and facts as stipulations stipulated may of counsel. so The be statеd Boyd (Aycock) Aycock and wife follows: E. owned a fifteen-acre County. Aycock Union On tract of land June 1965 plaintiffs Jimmy this tract Y. lot from Marrone, Jr. and (Marrone). wife, Immediately Mae Marrone following Arthur appears following: deed description there CONVEYANCE IS MADE “THIS SUBJECT TO THE RESTRICTIONS, FOLLOWING WHICH SHALL RUN AS LAND, WITH THE COVENANTS VIOLATIONS OF WHICH BE SHALL RESTRICTIONS EXPOSURE TO SUITS FOR AND ALL BY ANY DAMAGES ADJOINING PROPERTY defined OWNERS, who shall be as the Grantors any herein or might acquire Grantees who of their any portion of original plus acre tract: restricted to residential uses Property only, shall be 1. more than one detached outbuilding. shall have residencе no than shall be not less 1,500 Exterior construction square 2. living heated area. feet of any shall exposed construction not have Exterior con-
3. block. cinder or solite crete, dwelling improvement one shall No more than be con-
4. originally by sold Grantors on one herein. structed improvements construction shall be erected No nearer SPRING SESSION 1970 N.C.App.] Long
Makbone Helms v. adjacent an right-of-way, than 30 feet to street or road no nearer than 8 feet to other line. sign greater
6. No sizе than 3’ x shall displayed 5’ any purpose.” appear some date which does not in this map On record a of this map tract was recorded. The “Map 15-acre entitled of Boule- Park, Township, vard Monroe Union County, C., Boyd Ay- N. E. Surveyed September 27, Althоugh cock—Owner. 1965.” stip- so appears ulated, map lot No. 1 on said to contain the tract previously conveyed Marrone. to Marrone made no reference to a map or to “Boulevard Park.” *3 Aycock conveyed
By 1965 four lots the deed dated 5 October wife, Helms and Delana Helms. The de- Franklin plaintiff Charles and bounds and was metes reference to in this deed scription in Aycock’s “Boulevard Park” Subdivision recorded Plat Boyd E. were no restrictions or reservations in page at 133. There Book 5 this deеd. Aycock conveyed lot 5 dated 5 October 1965 No.
By deed to an individual from whom Park” Subdivision it the “Boulevard defendant, Long, E. by the Charles on 10 December acquired was or reservations in either no restrictions of these There were 1968. a Long has construсted residence on lot No. defendant 5 deeds. The square living feet of heated only 1,000 area. The which contains jury, without a should court, the determine the agreed that parties following single issue: plaintiff in the contained Marrone’s
“Do defendant’s use of his lot in the Boulevard limit and restrict Park Subdivision?” apply, they if the restrictions did stipulated that was It damages would be question and the determined violated,
been ain trial. The court special issue answered jury upon a plaintiffs appeal. negativе and the in issue the appellants. plaintiff . Koy E. Dawkins for appellee. Funderburk
Coble defendant J.
VaughN, [2] No restrictions appear in the direct chain of title to defend to Mar no restrictions. The deed map shows The recorded ant’s lot. the “Boulevard Park” Sub- survey exеcuted rone was 454 IN THE COURT OF APPEALS
Marrone v. Lons v. Helms division and makes no reference to such subdivision or any lot therein. The deed to only Marrone is the deed from the grantor, Ay- common cock, containing making any restrictions or reference thereto. Thе judge correctly concluded that the restrictions plaintiff Marrone’s deed do not limit the defendant’s use of his lot. [1] Restrictive covenants cannot be established except by a in containing strument of adequate record words so unequivocаlly evincing party’s intention to limit the free use of the land that its ascertainment is not on inference, implication or doubt ful construction. Turner Glenn, 620, v. 220 N.C. 2d S.E. 197. If purchasers right-of-way acquire wish to or other easement over very other lands of grantor, easy it is it hаve so declared in conveyance. deed of Denny, Milliken v. 224, N.C. 53 S.E. 867. “The courts put are not inclined to restrictions deeds where parties left Hege them out.” Sellers, 240, 241 N.C. 84 S.E. 2d In the last cited the owner sold all of the lots his sub except division following one and inserted the restriction in each deed: “All lots contained in this property known as Wooded Acres shall be used purposes only.” for residential His deed to the last lot contained no restriction. The Court held the last subject without restriction, imposed in thе earlier deeds.
[2] Here, Church v. Berry, N.C. App. 617, 163 S.E. 2d appellant contends that he is sought by entitled the relief reason of the of a decision divided court in Reed v. Elmore, 246 *4 221, 90 S.E. 2d The facts in Church v. Berry, supra, were very similar to those in the case before us and the decision there is con trolling opinion in here. The that brings case forward and reviews pertinent Supreme decisions of the prior Court to its decision in Elmore, Reed v. supra, very carefully distinguishes that case grantor in and, where the one tract the same instrument, expressly imposed restrictions on other real estate by retained him, cases, bar, from other such as the one at where there have been no express by grantor the covenants made to the remainder of his propеrty. following analysis J., in Parker, Church v. Berry, supra, entirely appropriate disposition of the case now before us: interpret
“. . . We do not so Reed v. Elmore, supra. It majority opinion should be noted that the in Court that case both Turner Hege cited v. Glenn and v. Sellers and did éxpressly overrule the contrary, either. On the Court took care distinguish to Turner by pointing v. Glenn out that express there had been no covenant made grantor the common SESSION 1970' SPRING N.CApp.]
Makrone v. Lons and Helms v. Lons as to remainder his property, of whereas in there Reed express application been a clear of grantor’s the restriction to retained lot majority opinion While the Reed does un- #4. doubtedly modify decisions in Turner and in Hege, goes we understand decision it the Reed no further than to re- quire purchaser property of real in North Carolina to examine all conveyances by prior recorded ‘out’ made record title holders during periods they respectively when held title to prop- erty, to determine if such owner had expressly imposed a upon property. restriction the use of the If no restriction is im- posed by express clear and language, purchaser or his title go speculate further and to required examiner is not at his peril imposition as to whether of some restriction is im- logical through processes analysis of plied, language either large fact that a number employed, or from the of deeds con- taining given, uniform restrictions had been or from any com- bination of both. of a real estate developer
“If the subdivision actually intends restricted, simple enough therein be it is that all lots for him to grantees wants in a say If one of his to invest so. restricted lot similarly only if all then unsold lots are restricted, he has but say grantоr expressly his in the insist that so which right rely has no on the acquires shaky grounds title. He he implication.” being of record which expressly imposes no instrument There the decision of on defendant’s court is Affirmed. C.J., concurs.
Mallaed, J., dissents.
MoRRis, J., dissenting:
Morris, majority opinion Berry, Church v. in the Court, This opinion concluded that (1968), 2d 664 163 S.E. App. 617, 2d (1957), requires 98 S.E. Elmore, 246 N.C. Reed examine all in this State to recorded con- real purchaser during period *5 holders record title of by prior made veyances purpose determining for property of ownership of the their expressly imposed restrictions on the any one of them whether interpretation of Elmore, this Reed v. property. With of the use majority opinion affirms case, the trial agree. In this supra, I IN THE COURT OF APPEALS
Peeler u. Peeler court because there “no instrument of record which expressly im- poses any restrictions on defendant’s lot”. appears
It Aycock from the record that owned a fifteen-acre tract. Aycock On June a lot from this tract to Marrone. This deed contained Subsequent restrictions. deeds for lots from this tract no fifteen-acre restrictions. However, my opinion, the Marrone deed are clearly sufficiently, ex- pressly specific stated to serve as of notice their application to other lots thе tract. The restrictions are set out in full in the majority opinion. paragraph making conveyance subject The the re- strictions states that shall run with the land and specifically grantees grantors subsequent might refers to who ac- any quire portion original fifteen-acre tract. The first restric- purposes tion limits use only provides to residential that “no outbuilding.” residence shall have more than one detached The provides dwelling fourth restriction that than “no more one shall be originally constructed on one sold the Grantors herein.” (Emphasis supplied.) requires The fifth restriction that “no con- improvements struction shall be erected nearer than 30 feet to an adjacent right-of-way, street or road no nearer than 8 feet (Emphasis suppliеd.) other line.” agree
I cannot the restrictions were obviously intended to being apply only conveyed. contrary to the lot then seems more obvious to me. The deed was Aycock recorded the first deed from and its to his subsequent conveyаnces recordation of lots It, therefore, tract. constituted notice to purchasers of lots in Elmore, the fifteen-acre tract. Reed v. supra. compelled
For I reasons, these am vote reversal. LEE FLETA T. PEELER v. J. PEELER No. 7014DC130 April 1970) (Filed 1 — judgments appealable alimony 6— and Error award of § pendente lite and counsel fees requiring payment alimony pendente attorney An order lite and fees right appeal right. affects substantial which an lies as a matter of — Alimony alimony pendente 2. Divorce 18— lite § spouse dependent spouse purpose receiving alimony In for the order