Logan v. Sprinkle

123 S.E.2d 209 (1961)

256 N.C. 41

Bess A. LOGAN, Plaintiff, v. John A. SPRINKLE and wife, Bessie L. Sprinkle, Elsie S. Leake and husband, H. H. Leake, Frances S. King and husband, Allan H. King, and Ethel G. Sprinkle, Original Defendants, and Louis C. Barnes and wife, Alee H. Barnes, Additional Defendants.

No. 384.

Supreme Court of North Carolina.

December 13, 1961.

*212 Averitt, White & Crumpler, Leslie G. Frye, Winston-Salem, for plaintiff-appellee.

Leake & Phillips, Winston-Salem, for original defendants-appellant.

DENNY, Justice.

The appellants assign as error (1) that the findings of fact by the court below are contrary to the agreed statement of facts filed in this case and the evidence presented at the trial thereof; (2) that the conclusions of law by the court below are contrary to the facts and the law applicable to same; (3) that the judgment declaring the restrictive covenants contained in Deed Book 694, page 62, inoperative, ineffective, null and void, is contrary to the facts of the case and the law applicable to same; and (4) that the judgment invalidates restrictive covenants and destroys property rights contrary to law and equity.

However, these assignments of error are not supported by exceptions to the findings of fact or to the conclusions of law. Not a single exception appears in the record. The appellants merely made their appeal entry in the following language: "To the findings of fact, conclusions of law, and the signing and entry of the judgment the defendants, in open court, except, and give notice of appeal to the Supreme Court."

A single exception to the findings of fact and the conclusions of law presents nothing for review except whether or not the court's conclusions of law are supported by the findings of fact. Kovacs v. Brewer, 245 N.C. 630, 97 S.E.2d 96; Travis v. Johnston, 244 N.C. 713, 95 S.E.2d 94; Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223; Winborne v. Stokes, 238 N.C. 414, 78 S.E.2d 171; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; Wilson v. Robinson, 224 N.C. 851, 32 S.E.2d 601. Furthermore, an assignment of error unsupported by an exception duly taken and preserved, *213 will not be considered on appeal. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118; Barnette v. Woody, supra. However, the appeal itself constitutes an exception to the judgment and presents for decision the question whether the facts found support the judgment. City of Goldsboro v. Atlantic Coast Line R. R., 246 N.C. 101, 97 S.E.2d 486; Bishop v. Bishop, 245 N.C. 573, 96 S.E.2d 721; James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759.

Consequently, on this appeal, we are limited to a determination as to whether or not the facts found are sufficient to support the conclusions of law and the judgment entered pursuant thereto.

The appellants contend that the court's failure to find as a fact that the restrictive covenants were in each of the deeds in the chain of title from the original defendants to the plaintiff, was a material omission of competent and necessary evidence. This contention is without merit. The agreed statement of facts contained statements to the effect that all the deeds in plaintiff's chain of title contained the same restrictive covenants that the deed from the original defendants to Nell M. Freeman contained. Even so, in the absence of a request that the court find a particular fact, appellants may not object to the failure of the court to find such fact. St. George v. Hanson, 239 N.C. 259, 78 S.E.2d 885; Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133.

However, if the original defendants intended to develop the land surveyed and laid out as designated on the map or plat of Beacon Hill, Section 1, according to a general plan, restricting the lots shown therein to residential use only, they abandoned such intention when they conveyed six of the eight lots in the development to be used for the construction and operation of a motel, which is a commercial or business enterprise.

The use of a residence as a tourist home is violative of a covenant restricting the use of property to residential purposes. Deitrick v. Leadbetter, 175 Va. 170, 8 S.E.2d 276, 127 A.L.R. 849; Carr v. Trivett, 24 Tenn.App. 308, 143 S.W.2d 900. The erection and operation of a tourist camp violates a restriction against use of property for any purpose other than as a place of residence. Cantieny v. Boze, 209 Minn. 407, 296 N.W. 491, 173 A.L.R. 321. The construction of a motel on a lot or lots restricted to use as residential apartments is violative of such restrictive covenant. "A `motel' cannot be regarded as an apartment house. It is a modern development of an inn or hotel, and serves transients." Parrish v. Newbury (Ky.), 279 S.W.2d 229, 233.

Where a residential subdivision is laid out according to a general scheme or plan and all the lots sold or retained therein are subject to restrictive covenants, and the value of such development to a large extent rests upon the assurance given purchasers that they may rely upon the fact that the privacy of their homes will not be invaded by the encroachment of business, and that the essential residential nature of the property will not be destroyed, the courts will enforce the restrictions and will not permit them to be destroyed by slight departures from the original plan. Starkey v. Gardner, 194 N.C. 74, 138 S.E. 408, 54 A.L.R. 806; Vernon v. R. J. Reynolds Realty Co., 226 N.C. 58, 36 S.E.2d 710; East Side Builders v. Brown, 234 N. C. 517, 67 S.E.2d 489.

On the other hand, when there is a general scheme for the benefit of the purchasers in a development, and then, either by permission or acquiescence, or by a long chain of violations, the property becomes so substantially changed that the whole character of the subdivision has been altered so that the whole objective for which the restrictive covenants were originally entered into must be considered at an end, then the courts will not enforce such restrictive covenants. Restrictive covenants will not be enforced merely to *214 harass and annoy some particular person, when it is clear to the court that the objective for which the restrictive covenants were originally entered into have already failed. Starkey v. Gardner, supra; Elrod v. Phillips, 214 N.C. 472, 199 S.E. 722; Snyder v. Caldwell, 207 N.C. 626, 178 S.E. 83.

The subdivision of Beacon Hill, Section 1, was not developed according to a uniform scheme or plan for residential purposes. Therefore, cases like Vernon v. R. J. Reynolds Realty Co., supra, and Tull v. Doctors Building, Inc., 255 N.C. 23, 120 S.E.2d 817, cited and relied upon by the appellants, are not controlling on the facts in this case. Here, the original defendants have restricted only one lot for residential purposes in the entire subdivision. But, on the contrary, they have expressly authorized lots 1 to 6 inclusive, having a frontage of 723.0 feet on North Carolina Highway No. 67, being all the frontage in the subdivision on said highway except Lot No. 7 owned by the plaintiff, to be used for business and commercial purposes. And while there is no finding of fact with respect to Lot No. 8, the only lot in the subdivision now owned by the original defendants, the evidence tends to show that Lot No. 8 is so low "it wouldn't be any account for anything, because it is a drop-off, good for nothing but maybe a fish pond."

Since the subdivision under consideration was not developed according to a general plan or scheme, the grantees of property in the subdivision have no right to enforce the restrictions in any deed to any lot therein inter se. Maples v. Horton, 239 N.C. 394, 80 S.E.2d 38; Phillips v. Wearn, 226 N.C. 290, 37 S.E.2d 895; Humphrey v. Beall, 215 N.C. 15, 200 S.E. 918. Furthermore, in light of the findings by the court below, the court had the right to consider the changed conditions in the immediate area, without as well as within the development. Muilenburg v. Blevins, 242 N.C. 271, 87 S.E.2d 493; Shuford v. Asheville Oil Co., 243 N.C. 636, 91 S.E.2d 903.

Apparently, the additional defendants concluded in the trial below that they had no right to enforce the restrictive covenants in plaintiff's deed to Lot No. 7, in this subdivision, hence they did not except to the findings of fact or the conclusions of law, neither did they appeal from the judgment entered pursuant thereto.

In our opinion, the appellants waived their right to enforce the restrictive covenants in plaintiff's deed by modifying the restrictions in the deed to the additional defendants, thereby authorizing the construction and operation of a motel, which is a business enterprise. Shuford v. Asheville Oil Co., supra.

We hold that the facts found by the court below are sufficient to support the conclusions of law and the judgment entered.

Affirmed.