Hege v. Sellers

84 S.E.2d 892 (1954)

241 N.C. 240

Spencer Lee HEGE and wife, Laura Edna Hege, H. L. Bondurant and wife, Nan Bondurant, Harry G. Garrison and wife, Ellen B. Garrison, Frank E. Killian and wife, Sarah B. Killian, Robert E. Sleet and wife, Mary W. Sleet, S. J. Moses and wife, Edith L. Moses, M. D. Pratt and wife, Elizabeth H. Pratt, Quentin Cooper and wife, Erna S. Cooper, R. T. McManeus, Jr. and wife, Barbara F. McManeus, Deibert M. Allen and wife, Julia F. Allen, B. B. Farlow and wife, Shirley O'B. Farlow, John M. Hunter and wife, Mary Anderson Hunter, Henry J. Cooper and wife, Azille S. Cooper, James E. McClain and wife, Margaret J. McClain, William M. Edwards and wife, Johnnie L. Edwards, E. R. Greene and wife, Marie K. Greene, Fred E. Brunson and wife, Harrilee L. Brunson, Dewey S. McHugh and wife, Clara McHugh, Richard W. Stoker and wife, Jane F. Stoker, American Trust Company, Trustee, Hollis P. Allen and wife, Alma C. Allen, v. Charles G. SELLERS and wife, lrene T. Sellers, J. L. Sides and wife, Ophelia M. Sides.

No. 521.

Supreme Court of North Carolina.

December 15, 1954.

*895 Francis H. Fairley, Charlotte, for plaintiffs, appellants.

Orr & Osborne, by Frank W. Orr, Charlotte, for defendants Sellers and wife, appellees.

McDougle, Ervin, Horack & Snepp, by Frank W. Snepp, Jr., Charlotte, for defendants Sides and wife, appellees.

HIGGINS, Justice.

During the 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 plaintiffs' Exception No. 7 and Assignment of Error No. 2. Ordinarily, parol evidence is incompetent to prove the 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.

*896 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 of 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, 178 N.C. 334, 100 S.E. 518; Hall v. Hall, 179 N.C. 571, 103 S.E. 136.

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: "Did he tell you he had sent that 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 Carpenter, 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 F, 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 R. Carpenter." There was, therefore, no dispute about the delivery 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. Frank Orr, an attorney for C. G. 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. Frank Orr were there at Mr. Orr's office * * * at the end of the deal the money was passed and the deeds delivered. 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; before 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 for Lot No. 11 just exactly the way it is here * * * Mr. Allen 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 handed me the deed for Lot No. 10. Mr. Carpenter handed me this deed for Lot No. 11, I 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 for 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 appear in what way the answer would have been material, or that excluding the testimony was prejudicial.

*897 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 a written instrument. In the case of Sills v. Ford, 171 N.C. 733, 88 S.E. 636, 638, this Court said: "The authorities are uniform in holding that the relief by reformation of a written instrument will be granted to the original parties thereto, and to those claiming under or through them in privity. * * * `In all cases of mistake in written instruments, courts of equity will interfere only as between the original parties, or those claiming under them in privity'". It is true that Hollis P. Allen made a contract to sell Lots Nos. 10 and 11 to the defendants C. G. Sellers and wife. He owned and could sell and convey Lot No. 10. He did not own and could not convey Lot No. 11. His negotiations to purchase Lot No. 11 from Mr. Sides through his agent, Mr. Carpenter, were entirely in parol and void under the statute of frauds. When the deed was made it was made from Sides, the owner, to Sellers, the purchaser. Allen is a stranger to the chain of title. He never had any enforceable right to Lot No. 11. He is not an owner of any of the lots in Wooded Acres. The contract entered into between H. P. Allen and C. G. Sellers and wife, Irene T. Sellers, shows upon its face that Allen was acting not as owner, but as agent for some one else. The contract states: "Through H. P. Allen, Realtor, Agent * * * has this day sold, and C. G. Sellers and wife, Irene T. Sellers, has this day purchased that certain parcel of land known as Lots Nos. 10 and 11, in Wooded Acres according to map or plat of same" * * * "It is understood and agreed that said property will be conveyed subject to such conditions, reservations and restrictions as appear in instruments constituting chain of title and subject also to zoning laws * * * This contract contains the final and entire agreement between the parties hereto and they shall not be bound by any terms, conditions, statements or representations, oral or written, not herein contained."

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 the 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 taking 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 exact 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 or 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 *898 be by another written instrument, or, if added to the original, 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 have on the validity of the deed, and whether, if valid, Allen and wife and Sides and wife are now in a position to deny its validity, are questions not presented on this record. All parties in their pleadings, evidence and briefs seem to have treated the deed as valid, contesting only the issue as to whether it is, or should be subject to restrictions.

A restriction of the enjoyment of property must be created in express terms or by plain and unmistakable implication. Starmount Co. v. Greensboro Memorial Park, 233 N.C. 613, 65 S.E.2d 134, 25 A.L.R.2d 898; Ivey v. Blythe, 193 N.C. 705, 138 S.E. 2.

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 inadvertence, or mutual mistake, is the desire of the law to effectuate the original intent and agreement of the parties." Davis v. Robinson, 189 N.C. 589, 127 S.E. 697, 700.

The remaining question is whether the defendants C. G. 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 an examination would disclose. In consequence, a purchaser of land is chargeable with notice 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, 231 N.C. 242, 56 S.E.2d 661, 665; Sheets v. Dillon, 221 N.C. 426, 20 S.E.2d 344; Turner v. Glenn, 220 N.C. 620, 18 S.E.2d 197. Since the effective date of the Connor Act, December 1, 1885, in matters involving the title to land it is intended that the public registry should be the source of notice. Since then it is considered not enough to send word by the mail boy. Notice, however full and formal, cannot take the place of registered documents. Austin v. Staten, 126 N.C. 783, 36 S.E. 338; Hinton v. Williams, 170 N.C. 115, 86 S.E. 994; Blacknall v. Hancock, 182 N.C. 369, 109 S.E. 72.

"`If purchasers wish to acquire a right of way or other easement over other lands of their grantor, it is very easy to have it so declared in the deed of conveyance. It would be 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, 141 N.C. 224, 53 S.E. 867. A building restriction is a negative easement and within the statute of frauds. It cannot be proved by parol. A verbal contract for a right of easement is void under the statute of frauds. Davis v. Robinson, supra.

Restrictive covenants are not favored. As was said by this Court in Callaham v. Arenson, 239 N.C. 619, 80 S.E.2d 619, 624, "Further, it is to be noted that we adhere to the rule that since these restrictive servitudes are in derogation of the free and unfettered use of land, covenants *899 and agreements imposing them are to be strictly construed against limitation on use. Craven County v. First-Citizens Bank & Trust Co., 237 N.C. 502, 75 S.E.2d 620." The courts are not inclined to put restrictions in deeds where the parties left them out.

For the reasons given, the judgment of the court below is

Affirmed.