White v. Moore, 11 N.C. App. 534

11 N.C. App. 534 | N.C. Ct. App. | 1971

BRITT, Judge.

The questions raised by this appeal are: (1) Is the proviso prohibiting a trailer park and automobile junk yard inserted in the commissioner’s deed to Kinlaw valid? (2) Are defendants estopped to deny the validity of the proviso? We answer both questions in the negative.

(1) In Peal v. Martin, 207 N.C. 106, 176 S.E. 282 (1934), the court said: “A commissioner appointed by a court of equity to sell lands is empowered to do one specific act, viz., to sell the land and distribute the proceeds to the parties entitled thereto. He has no authority and can exercise no powers except such as may be necessary to execute the decree of the court.”

In Trust Company v. Refining Company, 208 N.C. 501, 181 S.E. 633 (1935), a commissioner was authorized by the court to sell part of the lands of an estate for reinvestment. There were no restrictions in regard to the use of the property of the estate, and in the commissioner’s report and recommendation of the offer to purchase, no authority to restrict the use of the property was asked, and none granted in the order of the court. The commissioner executed deed to the purchaser upon order of the court, but inserted restrictions in the deed limiting the use of the property to white people and residence purposes. The Supreme Court held: the commissioner was without authority to insert the restrictions in the deed to the purchaser, his authority being limited under the order of the court to the sale of the property and the disposition of the proceeds of sale; the restrictions were null and void and the purchaser at the sale could transfer title free of the restrictions.

See also Craven County v. Trust Company, 237 N.C. 502, 75 S.E. 2d 620 (1953). We hold that the restrictive proviso in Kinlaw’s deed was void.

(2) Although the doctrine of equitable estoppel is recognized in this jurisdiction, 3 Strong, N. C. Index 2d, Estoppel, § 4, page 582 et seq, we hold that the doctrine does not apply in this case. In Finance Corp. v. Shivar, 8 N.C. App. 489, 174 S.E. 2d 876 (1970), this court said: “Equitable estoppel is to be applied as a means of preventing injustice and must be based on the conduct of the party to be estopped which the other party relies upon and is led thereby to change his position to his disadvantage. Smith v. Smith, 265 N.C. 18, 143 S.E. 2d 300.” Conceding, arguendo, that Kinlaw’s conduct was imputed to defendants, we do not think that Kinlaw was, estopped. Plaintiffs received and filed for registration their deed at least five days before Kinlaw received his deed. How can it then be said that plaintiffs relied upon Kinlaw’s conduct and were thereby led to -change their position to their disadvantage?

For the reasons stated, the judgment appealed from is

Affirmed.

Judges Campbell and Graham concur.