Sheets v. Dillon
221 N.C. 426
N.C.
1942
Check Treatment
EarNHill, J.

Tbe servitude imposed by restrictive covenants is a species of incorporeal right. It restrains the owner of the servient estate from making certain use of his property. Turner v. Glenn, 220 N. C., 620, and cases cited; 14 Am. Jur., 608-09. Such right or interest reserved in a conveyance will be effective as against all who deraign title through the grantee, although the reservation is not expressed in subsequent deeds. 16 Am. Jur., 611.

The courts have generally sustained covenants restricting the use of property where reasonable, not contrary to public policy, not in restraint of trade and not for the purpose of creating a monopoly — and building restrictions have never been regarded as impolitic. So long as the beneficial enjoyment of the estate is not materially impaired and the public good and interest are not violated such restrictions are valid. Subject to these limitations the court will enforce its restrictions and prohibitions to the same extent that it would lend judicial sanction to any other valid contractual relationship. 14 Am. Jur., 616. Hence, the restriction is not void ab initio. If conditions have arisen or circumstances have developed which make the enforcement thereof inequitable and unjust, 14 Am. Jur., 615, the burden of so showing rests upon him who seeks its annulment. Until he has so shown the restriction is binding and effective.

A person owning a body of land, and selling a portion thereof, may, for the benefit of his remaining land, impose upon the land granted any restrictions not against public policy that he sees fit. 7 R. C. L., 1114. In the absence of a general plan of subdivision, development and sale subject to restrictions, the restriction limiting the use of the portion sold is deemed to be personal to the grantor and for the benefit of the land retained. Ordinarily, it is only when the subdivided property is conveyed by deeds containing uniform restrictions in accord with a general scheme and for the benefit of all within a specified area that the other grantees of the owner of the original tract may enforce the restriction.

There is evidence here that the grantor or its successor still owns a part of the original tract. It also appears that all the lots, save one, in the block in which plaintiff’s lot is located were sold subject to similar restrictions. Hence, there is some evidence that plaintiff acquired title under a general scheme or at least tending to show that other grantees of the original grantor may be interested in attempting to so prove. It follows that the original grantor is, and its other grantees may be, interested in the enforcement of the covenant plainiff seeks to annul.

The judgment herein is not conclusive as to any one other than plaintiff and defendant. Plaintiff’s predecessor in title and those who may claim that the covenant was inserted pursuant to a general plan or scheme of development are not estopped from hereafter asserting their *432rights thereunder. Under such circumstances equity will not require defendant to comply with his contract in direct violation of the stipulation that the property is to be conveyed free of restrictive covenants. If plaintiff desires to have this covenant invalidated and stricken from the deed of the original grantee, he must bring in the interested parties and give them a day in court.

We are not inadvertent to Elrod v. Phillips, 214 N. C., 472, 199 S. E., 722, relied on by plaintiff. We do not consider that it is controlling on the question here discussed and decided. See Brenizer v. Stephens, 220 N. C., 395, and Turner v. Glenn, supra.

Since the cause must be remanded for new parties and a further hearing, we refrain from a full discussion either of the evidence or of the law of the case.

Error and remanded.