Opinion
16594.
APRIL 13, 1949.
Injunction. Before Judge Guess. Clayton Superior Court. December 22, 1948.
R. B. Pullen and Claud F. Brackett, for plaintiff in error.
Coogler Kemp, contra.
1. "When a grantee accepts a deed and enters thereunder, he will be bound by the covenants contained therein, although the deed has not been signed by him." Code, § 29-102; Atlanta, Knoxville Northern Ry. Co. v. McKinney, 124 Ga. 929 ( 53 S.E. 701, 6 L.R.A. (N.S.) 436, 110 Am. St. R. 215); Union City Realty Co. v. Wright, 138 Ga. 703 (1) ( 76 S.E. 35); Louisville N. Railroad Co. v. Nelson, 145 Ga. 594 (1) ( 89 S.E. 693); Alropa Corp. v. Pomerance, 190 Ga. 1, 6 ( 8 S.E.2d 62).
2. "Where the owner of realty sells a portion thereof, imposing on his vendee restrictions relating to the use of the estate conveyed, thus creating a covenant running with the land, there is a presumption, in the absence of any facts and circumstances showing a contrary intent, that the restriction is imposed for the benefit of the land retained, with the result that an implied inhibition is created as to the use of the portion of the land conveyed, for the benefit of the owner of the unsold portion"; and a remote grantee of another portion of the realty may sue in equity to prevent a violation of the restrictions. Wardlaw v. Southern Ry. Co., 199 Ga. 97, 101 ( 33 S.E.2d 304).
3. Restrictions upon the use of land must be clearly established and strictly construed. Randall v. Atlanta Adv. Service, 159 Ga. 217 ( 125 S.E. 462); Kitchens v. Noland, 172 Ga. 684, 689 ( 158 S.E. 562); David v. Bowen, 191 Ga. 467, 469 ( 12 S.E.2d 873).
4. So construing the restriction affecting lot No. 1 here involved, that "The first residential improvement placed upon said property shall be a residence erected on the front part thereof to cost not less than $2500, and such residence shall be occupied only by people of the white race, and not for any business purposes," the words, "not for any business purposes," have reference solely to a building erected for residential purposes as the "first residential improvement," and do not relate to any portion of the lot on which such "first residential improvement" is not placed.
(a) Accordingly, a fireworks stand erected on such lot, not being a "residential improvement," but merely a location or station for business (Webster's Dictionary) for the purpose, as alleged in the petition, "of selling and dispensing fireworks and other merchandise," does not constitute a violation of the restriction affecting lot No. 1.
5. Aside from the fact that no cause of action is set forth in favor of one of the petitioners, the "owner of other property in the near vicinity," because it does not appear that he now owns any part of the realty of which lots 1, 2, and 3 from a part, the petition, seeking injunction and other relief, does not show that the only applicable restriction, namely, that affecting lot No. 1, is being violated by the defendant in the erection of a fireworks stand thereon, and, accordingly, no cause of action is set forth in favor of any of the petitioners, and the court erred in overruling the defendant's general demurrer.
6. The special demurrers are clearly without merit.
Judgment reversed in part, and affirmed in part. All the Justices concur.
No. 16594. APRIL 13, 1949.
STATEMENT OF FACTS BY DUCKWORTH, CHIEF JUSTICE.
Charlie N. Lewis, Mrs. Charlie N. Lewis, and L. H. Cox filed in the Superior Court of Clayton County, Georgia, a petition naming as defendant Mrs. Annie Bell Stephens Lawson and alleging the following: The defendant is the owner and in possession of described real estate in land lot 12 of the 13th district of Clayton County, Georgia, and also the owner and in possession of described real estate in said land lot and district known as lot No. 2. At the time the said property was subdivided, the first-mentioned parcel was conveyed by warranty deed from Leslie H. Cox to W. J. Lambert, which was dated August 4, 1927, and contained the following restrictive covenant: "The first residential improvements placed upon said property shall be a residence erected on the front part thereof to cost not less than $2500, and such residence shall be occupied only by people of the white race, not for any business purposes." The said deed was duly recorded. The second-mentioned parcel was conveyed by the said Leslie H. Cox by warranty deed to Mrs. Hattie M. Jenkins, which was dated October 18, 1928, and contained the following restrictive covenant: "This deed given by party of the first part and is accepted by the party of the second part, subject to the following restrictions and limitations that property herein conveyed shall be used for residential purposes only, and no business house or houses shall be erected thereon, nor shall the property be used by, or transferred to, any person of African descent, except, however, that said restrictions and limitations may be modified in writing by the first party or his heirs." The said deed was duly recorded. The defendant purchased both of the said parcels of land from N.W. Johnson in March, 1947, her deed being duly recorded; and being the successor in title to the same, she is as such bound by the covenants contained in the deeds acquired by the said W. J. Lambert and Mrs. Hattie M. Jenkins. The petitioners, Mr. and Mrs. Charlie N. Lewis, are the owners of lot No. 3 of the said Leslie H. Cox Subdivision, adjoining the said above-mentioned parcels of land, and the deed executed by the said Leslie H. Cox to their predecessors in title contained a similar restrictive covenant, and they purchased the property on account of it and that adjoining it containing like covenants, so they could enjoy their home in an area restricted to residential purposes. The said Leslie H. Cox has never modified the restrictions and they are in full force and effect. The defendant, by herself, her agents, lessees, or employees, has permitted a fireworks stand to be placed upon the described premises (which in open court upon the hearing on demurrers was stated to be on lot No. 1 and was so treated by the parties without an amendment being filed); the said fireworks stand being for the purpose of selling and dispensing fireworks and other merchandise in violation of the restrictive covenants hereinbefore referred to. Mr. and Mrs. Charlie N. Lewis reside in their residence located on their lot above mentioned, and L. H. Cox is the owner of other property in the near vicinity; and unless a court of equity will restrain the violation of the covenants herein set out, the petitioners will be deprived of the peace and enjoyment of their home and suffer irreparable damages. The prayers were: (a) for process; (b) for a rule nisi requiring the defendant to show cause why she should not be restrained from violating the said covenants; (c) that temporary and permanent orders be granted, restraining the defendant, her agents, lessees and employees from conducting any business on the premises; (d) for general relief.
The defendant demurred generally on the following grounds: (a) The petition does not set forth any cause of action against the defendant. (b) The petition does not contain sufficient allegations to entitle the petitioners to equitable relief against the defendant. (c) The petition shows on its face that no violation of the alleged restrictions is being made by the defendant. (d) The restrictions, if existing, are too vague and indefinite to be enforceable against the defendant. (e) The restrictions show by their wording that they never contemplated the restriction of a temporary enterprise such as the sale of fireworks, and were not intended to prohibit the parking of a truck for the temporary sale of such fireworks.
The defendant specially demurred to the allegation that the defendant had permitted a fireworks stand to be placed upon lot No. 1, on the ground that it was not alleged what kind of fireworks or other merchandise the defendant was permitting to be sold on the premises or how such fireworks stand would interfere with the petitioners. The defendant specially demurred to the allegation that the petitioners would be deprived of the peace and enjoyment of their home and would suffer irreparable damage unless the defendant be enjoined as prayed, on the ground that it is not alleged how or in what manner they would be deprived of the peace and enjoyment of their home or in what manner they would be irreparably damaged.
The court overruled the demurrers, and the exception here is to that judgment.