Phillips v. Wearn

The appellant challenges the correctness of the judgment below. The challenge must.fail. The facts presented on this appeal clearly show that the development known as Chantilly is not the result of a general plan or scheme of development of an exclusive residential community. Snyder v. Heath, 185 N. C., 362, 117 S. E., 294; Davis v. Robinson, 189 N. C., 589, 127 S. E., 697; Ivey v. Blythe, 193 N. C., 705, 138 S. E., 2; DeLaney v. Hart, 198 N. C., 96, 150 S. E., 702; Eason v. Buffaloe, 198 N. C., 520, 152 S. E., 496.

The original owners of the development never sold any of the lots subject to limitations as to use or occupancy. The Greater Charlotte Finance & Realty Company sold 262 lots in 26 different blocks of the development and the deeds conveying said lots contained no restrictions or conditions limiting or restricting the use and occupancy of the property. During the same period in which this corporation sold the above lots without restrictions, it also sold 433 lots in 31 of the blocks of the development, restricting the use of the property for residential purposes only. The lots sold without restrictive covenants in the deeds, as well as those sold subject to restrictions, were scattered throughout the development. There is no evidence to support the veiw that this development was ever subject to any general plan or scheme whereby the restrictive covenants in the deeds referred to above could have been enforced by the grantees inter se. Humphrey v. Beall, 215 N. C., 15, 200 S. E., 918.

Since the locus in quo has never been subject to any general plan of development, the restrictions contained in the conveyances of the Oak-hurst Land Company and the Charlotte National Bank, which the plaintiffs contend are null and void, were never enforceable, except as covenants personal to the grantors, and those covenants became unenforceable with the final dissolution and liquidation of the aforesaid corporations. Snyder v. Heath, supra; Thomas v. Rogers, 191 N. C., 736, 133 S. E., 18; DeLaney v. Hart, supra.

*295Tbe appellant admits that bis contract of purchase provides for the retention of the restriction prohibiting any person or persons of the Negro race to own or occupy the locus in quo, but he contends that if the property is not subject to a general plan or scheme for its development as residential property, then this restriction also is unenforceable. The position would be well1 taken if the appellant had contracted to accept a deed free and clear of all restrictions, but he did not do so. He has agreed to accept a deed that will vest in him a good, indefeasible, fee simple title to the locus in quo “free and clear from any conditions and restrictions limiting or affecting such use and occupancy other than that they shall not be owned or occupied by persons of the Negro race.” Therefore, not by virtue of a general plan or scheme, but by agreement, the parties hereto have created a restrictive covenant which is enforceable between the parties. 14 Am. Jur., sec. 309, p. 651.

There is no error in the judgment below, and it is

Affirmed.