STEPHENS CO.
v.
LISK et al.
No. 532.
Supreme Court of North Carolina.
May 19, 1954.*101 G. T. Carswell, James F. Justice, Charlotte, for plaintiff-appellee.
Cochran, McCleneghan & Miller, Charlotte, for plaintiff-appellee.
WINBORNE, Justice.
This is the question for decision here: Did the trial court err in concluding as a matter of law that, upon the stipulated facts, the property of feme defendant, described in the complaint, is chargeable for its proportionate share of the cost of improving Maryland Avenue as set forth in the judgment from which appeal is taken?
This is a question of law determinable by proper interpretation of the wording of the covenant as written in the deeds under which feme defendant acquired title to the lots constituting the property described in the complaint.
A covenant, as stated by Battle, J., in Kent v. Edmondston, 49 N.C. 529, is defined to be "the agreement or consent of two or more, by deed in writing, sealed and delivered; whereby, either, or one of the parties, doth promise to the other, that something is done already, or shall be done afterwards. And he that makes the covenant is called the covenantor, and he to whom it is made, the covenantee".
Moreover, a conveyance of land with covenant on the part of the grantee, for himself, his heirs and assigns, such as in the case in hand, is a binding covenant running with the land, and is enforceable. Ring v. Mayberry, 168 N.C. 563, 84 S.E. 846, 847. Indeed, in the Ring case, Clark, C. J., speaking of a covenant running with the land, had this to say: "Aside from the express averment of the creation of the easement, the acceptance of the deed containing a covenant on the part of the grantee is equivalent to the grant of an easement by the defendant. Such covenants run with the land and are not at all unusual. They are good even against assignees in fee, where the intention to create them is clear"citing Cyc. and Norfleet v. Cromwell, 64 N.C. 1.
The covenant involved in this appeal is made expressly by the grantees, "the parties of the second part for themselves, their heirs and assigns", and it is expressly stated that "this covenant shall run with the land, and the cost of improvements above referred to shall be a charge upon the same in whosoever hands it shall be at the time of said improvements".
Hence by the acceptance of the deed containing the covenant, the grantees, for themselves, their heirs and assigns, became the covenantors, and those to whom the covenant is made the covenantees. And the obligations assumed by the grantees in the covenant made are binding upon their assigns. The feme defendant is an assignee of the grantees, and the covenant made runs with the land, as expressly set forth.
And decisions of this Court uniformly hold that the courts are required to interpret a deed so as to ascertain and effectuate the intention of the parties as gathered from the entire instrument. In Gudger v. White, 141 N.C. 507, 54 S.E. 386, 388, the Court, treating the subject of interpreting a deed, in opinion by Walker, J., declared: "We are required by the settled canon of construction so to interpret it as to ascertain and effectuate the intention of the parties. Their meaning, it is true, must be expressed in the instrument; but it is proper to seek for a rational purpose in the language and provisions of the deed and to construe it consistently with reason and common sense. If there is any *102 doubt entertained as to the real intention, we should reject that interpretation which plainly leads to injustice, and adopt that one which conforms more to the presumed meaning, because it does not produce unusual and unjust results. All this is subject, however, to the inflexible rule that the intention must be gathered from the entire instrument, `after looking' as the phrase is, `at the four corners of it.'"
This rule, variously expressed, is followed throughout subsequent decisions of this Court,among which are these: Featherston v. Merrimon, 148 N.C. 199, 61 S.E. 675; Triplett v. Williams, 149 N.C. 394, 63 S.E. 79, 24 L.R.A.,N.S., 514; Price v. Griffin, 150 N.C. 523, 64 S.E. 372, 29 L.R. A.,N.S., 935; Thomas v. Bunch, 158 N.C. 175, 73 S.E. 899; Acker v. Pridgen, 158 N.C. 337, 74 S.E. 335; Williamson v. Bitting, 159 N.C. 321, 74 S.E. 808; Eason v. Eason, 159 N.C. 539, 75 S.E. 797; Jones v. Sandlin, 160 N.C. 150, 75 S.E. 1075; Beacom v. Amos, 161 N.C. 357, 77 S.E. 407; Spencer v. Jones, 168 N.C. 291, 84 S.E. 261; Whichard v. Whitehurst, 181 N.C. 79, 106 S.E. 463; Shenandoah Life Ins. Co. v. Sandridge, 216 N.C. 766, 6 S.E.2d 876; Lee v. McDonald, 230 N.C. 517, 53 S.E.2d 845.
In the Spencer case, supra [168 N.C. 291, 84 S.E. 261], it is stated that "This doctrine applies to a covenant as to other contracts, and the intention of the parties, if discernible, will control in determining its meaning, which should be gathered from the entire instrument". And in the Lee case, supra [230 N.C. 517, 53 S.E.2d 848], Denny, J., writing for the Court, said, "The intent of the grantor in a deed * * * must be gathered from its four corners * * *."
And while punctuation is ineffective as against the plain meaning of the language used by the parties to a contract or other instrument of writing, still the rules of punctuation may be used to assist in determining the intent of the parties. 3 A.L.R. 1062, AnnotationSubject Punctuation as affecting construction of contract; Allen v. United States Fidelity & Guaranty Co., 269 Ill. 234, 109 N.E. 1035; State v. Bell, 184 N.C. 701, 115 S.E. 190.
In the Bell case, supra [230 N.C. 517, 53 S.E.2d 192], the Court was interpreting a statute, and speaking through Adams, J., said: "This, we think, is the rational interpretation. * * * in accord not only with the spirit and reason of the law, but with the phraseology and punctuation. Punctuation, we admit, is not an infallible standard of construction; indeed, some courts have held that it should be disregarded * * *. But this is not the prevailing doctrine. In Taylor v. [Inhabitants of] Town [of Caribou], 102 Me. [401] 406, 67 A.[2] 4, 10 Ann.Cas. [1080] 1082, it is said: `There is no reason why punctuation, which is intended to and does assist in making clear and plain the meaning of all things else in the English language, should be rejected in the case of interpretation of statutes. Cessante ratione legis, cessat ipsa lex.'"
Now in the light of these principles, we turn to the present case: The record of case on appeal does not incorporate the deeds here involved. But it is stated in the stipulation of facts that defendant Mary Parker Lisk is the owner of a certain tract of land, being part of Lot 34 and of Lot 35 in Block 80 of Myers Park as shown on the map thereof recorded in Map Book 3, page 470, Mecklenburg Registry, said property fronting 102.35 feet on the easterly side of Maryland Avenue, the same having been conveyed to her and her former husband by two certain deeds; that the Stephens Company was the developer of Myers Park, and caused the map of Block 80 of Myers Park to be recorded; and that the property of defendant, Mary Parker Lisk, was originally conveyed by The Stephens Company by two certain deeds, each of which contained the covenant hereinabove quoted.
In the light of these facts we look to the covenant: At the outset the premise of the covenant makes it clear that the parties mutually understood that the lots were conveyed as unimproved property without any obligation on the part of the grantor, The *103 Stephens Company, to improve same or the streets in or adjacent to Block 80, or to put in water or sewer lines or other conveniences for the benefit of the property, and that nothing had been included in the purchase price to cover any such improvement. Since The Stephens Company was developing Myers Park, of which Block 80 was a part, and since Maryland Avenue, on which the lots faced, was proposed, it seems natural that the above common understanding should be expressed.
Moreover, it clearly appears from the plain language of the covenant that in the event the party or parties authorized so to do "should decide to grade, pave or otherwise further improve the streets or sidewalks in or adjacent to said block, or to put in water or sewer lines or other improvements, the property conveyed shall bear its part of the cost of said improvements, based upon the frontage of the property so improved * * * and the cost of improvements * * * be a charge upon the same (land) in whosoever hands it shall be at the time of said improvements".
Now, then, we focus attention to this portion of the covenant: "* * * that in the event the party of the first part, or its successors or assigns, owner or owners of a major portion of the lots in such Block 80 facing on the proposed Maryland Avenue should decide to * * * improve the streets * * * or to put in water * * * improvements, the property hereby conveyed shall bear its part of the cost * * *." The plaintiff, who is "the party of the first part", made the decision. And the effect of the judgment below is that it had the right so to do.
Defendants contend, on the other hand, that under the wording of the covenant, "the consent of the owner or owners of a majority of the lots in Block 80" was required.
Who, then, was given the right to make decision? To answer this question it is necessary to ascertain from the language used what was the intention of the parties at the time the covenant was made.
Reading the language, as it is phrased and punctuated, it seems clear that there are alternate classes of subjects of the sentence, one, "the party of the first part", and the other, "its successors or assigns, owner or owners of a major portion of the lots in such Block 80 facing on the proposed Maryland Avenue".
Grammarians say ordinarily put a comma before clauses introduced by such conjunctions as "and", "but", "or", "nor", if a change of subject takes place. But that such connectives between words or phrases used in conjunction do not require a comma. Therefore, the comma after the words "the party of the first part" and before the next word "or" correctly separates "the party of the first part" as one class, from the class which follows.
The grammarians also hold that "for parenthetical, adverbial, or appositional clauses or phrases, use commas to indicate structurally disconnected, but logically integral, interpolations". Hence, applying this rule, the comma after the words "its successors or assigns" and before the clause beginning "owner or owners" clearly indicates that the latter is appositional to the words "its successors or assigns". Thus the punctuation seems to be accordant with good English grammar. Indeed, it makes clear and plain the language used. And it appears to be a rational interpretation. For in the light of the phraseology, as punctuated, we have these alternates: (1) "in the event the party of the first part * * * should decide to grade * * *"; and (2) "in the event * * * its successors or assigns, owner or owners of a major portion of the lots in said Block 80 facing on the proposed Maryland Avenue should decide to grade * * *". Therefore the punctuation, having been properly used, must have been intended to assist in making clear and plain what the covenantors intended. Manifestly the covenantee, The Stephens Company, so understood it.
Finally, it is not amiss to observe that the findings of fact fail to show (1) that defendants made any complaint when The Stephens Company was making the improvements, *104 or (2) that the amount of cost of the improvement sought to be recovered in this action is not the part of the cost allocable to the lots of defendants in accordance with the provisions of the covenant. Indeed it is agreed that it is the amount. Therefore no injustice appears.
The judgment below is
Affirmed.