Phillips v. Ingram , 1927 Ga. LEXIS 31 ( 1927 )

Hill, J.

(After stating the foregoing facts.)

Error is assigned in grounds 4 and 5 of the motion for new trial, because the court below admitted certain evidence over objection as set out in those grounds. Ground 4 is as follows; “The plaintiff asked the witness E. A. Smith whether, when he bought his lot, he relied on restrictions in the subdivision being carried out. To this question defendant Phillips objected that the witness should not be allowed to testify as to the contents of the restrictions, or to anything said to him about them; that they were not binding on the said defendant; and that witness should not be permitted to state his conclusion as to what was the legal effect of the restrictions. The objection was overruled, and the witness testified that he bought because it was a strictly white residence section. Thereupon said defendant moved to rule out the testimony so given, because not responsive to the question asked. The court thereupon said that there was an allegation in the petition to the effect that there was a general scheme in the subdivision for the purpose of selling the lots under certain restrictions, and that the evidence was competent to demonstrate whatever it might show on that point; and overruled the motion. Defendant now says that the necessary effect of the evidence offered was to testify to a conclusion on the part of the witness that the contract expressed in writings was a scheme on the part of the vendor, the Cobbs Land Co., made by it with the witness, to put the same restrictions on all the lots for the benefit of the witness, and that the court held and stated that such was'the effect, whereas defendant Phillips was contending that the legitimate legal meaning of the written deed was merely a limitation imposed on the purchaser, and not a limitation on the vendor at all, and that it did not have the effect to impose such on the vendor, or on the purchaser of any other lot.” In ground 5 of the motion it is stated that when the witness E. J. Durrett was testifying he was asked if it was his understanding that the subdivision was to be used strictly for residence purposes. To this question the defendant Phillips objected on the same grounds as those stated in the 4th ground of the motion, above set out, as well as on the ground that the understanding of the witness was not competent to be given in evidence against him. The court sustained the last ground on objection, but held that it would be competent for the witness to answer what he bought it for, and what representations were made by the owner as to the plan or scheme, if there was any representation. Whereupon the witness said he bought it for a home, but said nothing as to any representations made to him by the vendor. The defendant contends that allowing the witness to testify as to his motives in buying, under the facts stated, was error, and necessarily implied that there was a verbal understanding, and that because of this fact the ruling was erroneous and prejudicial to the defendant.

We are of the opinion that the court did not err in admitting the evidence objected to. The petition alleged that at the time of the subdivision of the property the Cobbs Land Co., in order to sell lots therein to'better advantage and for better prices, placed certain restrictions on all of the property, as set out in the petition, and intended to, and did, establish, with reference to said property, a general building scheme and development plan, and thereby induced plaintiffs and many others to purchase lots in said subdivision. See Hancock v. Gumm, 151 Ga. 667 (107 S. E. 872, 16 A. L. R. 1003); Rosen v. Wolff, 152 Ga. 578 (110 S. E. 877). It has been held that restrictions under a general plan adopted by the owner to sell lots may in equity be imposed on the lands, beyond the express restrictions contained in the deeds to the purchaser, on the theory of implied covenants; and that in a proper case equity will enforce against the covenantor’s grantee a personal covenant imposing restrictions on the use of land contained in the grant thereof. 15 C. J. 1218, § 14.

Error is assigned, in grounds 6, 7, and 8 of the motion for new trial, on the court’s refusal of certain requests to charge to the jury as follows: “The deeds put in evidence by the plaintiffs, and which appear to have been made by the Cobbs Land Co., contain certain conditions that have been referred to as restrictions, and are numbered 1, 2, 3, and 4. These restriction's are binding upon the lot named in the deed in which they occur, and upon the purchaser of that lot, and upon all who claim or hold that lot by or through that purchaser. The purchaser • can not disregard them, or use that lot or build on it in violation of the conditions stated. The restrictions do not, by their terms, refer to any other lot, or affect any other lot, than the one named in that deed. They are obligations imposed on the purchaser of that lot, and not on the purchaser of any other lot unless such other purchaser takes his deed with the same restrictions. They did not by their terms prevent the maker of the deed from conveying other lots to other purchasers free from restrictions.” And, “The fourth of the restrictions shown in the deeds expressly retains in the Cobbs Land Co. the right to complain of any violation of the first three restrictions, and reserves the same right to any person whose interest is affected by a violation of these restrictions; but this does not mean that the purchaser of that lot, or any person to whom he sells it, can complain against the Cobbs Land Co. as to some other lot that may be sold without restrictions. Neither does it give to the purchaser of the lot the right to complain against a person who buys some other lot free from restrictions.” And, “If the Cobbs Land Co. sold or bargained a number of lots with the restrictions that have been shown, and afterwards sold and conveyed the balance of the lots to the Colonial Hills Co., and expressly deeded them in fee simple to the Colonial Hills Co., and without any restriction or qualification on the title, the Colonial Hills Co. had the right, under the terms of their deed, to sell and convey the other lots to other purchasers, with all the same restrictions, or with some of the restrictions, or without any restrictions at all. If the Colonial Hills Co. did get such a fee-simple deed from the Cobbs Land Co. and did bargain a new lot unrestricted to the defendant, nothing in any deed shown by the plaintiffs gave them or any of them any right to complain of such new sale.”

In view of the facts of this case and of the general charge of the court, we are of the opinion that the court did not err in refusing the requests to charge, for any reason assigned. These requests do not cover squarely the issues in the case, and are not applicable to the facts. Furthermore, some of the requests are covered by the general charge of the court. The court charged: “Plaintiffs allege and contend that they own certain lots upon which they have erected their homes in what is known as Colonial Hills subdivision; that prior to their purchase of those lots Cobbs Land Co., common grantor as I will call it, had subdivided this property consisting of some eighty acres or more, and put it upon the market, subdivided it into lots, made a plat of it, had the plat recorded, and that Cobbs Land Co. sold the plaintiffs their lots, and, subdividing this property, advertised all the lots, or held the lots out to the public for sale, with certain restrictions, and among those restrictions were that the lots should only be used for residence purposes. Plaintiffs allege and contend that they bought their lots in view of those restrictions, and that the defendant, Mr. Phillips, has bought a lot in that subdivision, and is undertaking to erect a filling-station on that lot in violation of their restrictions and in violation of their rights under their contracts with the common grantor; and they seek to enjoin him from the erection of the building, the filling-station, on one of those lots within that subdivision. They contend that the Cobbs Land Co. prior to their. purchase, as stated, platted this acreage, or this land, and that they bought their lots with the understanding that the other lots would be so sold and on the agreement with the Cobbs Land Co. that the other lots within that subdivision would also be sold with those restrictions attached to them. The defendant, Mr. Phillips, contends that he bought his lot without any restrictions; that he bought it from the Colonial Hills Co., and that there was no restriction upon it; that he has a right to erect the filling-station, and that he had no notice of the restrictions placed upon the property, and that he had a right to use this property by the erection of a filling-station if he so desired. Defendant also insists that the contracts, if there be such, containing those restrictions, do not affect his lot and his property, for the reason I have stated, and for the additional reason that the contracts between the other property owners (the plaintiffs) and the Cobbs Land Company do not affect his right, and it was not the general plan to so subdivide this property, and it was only a contract between the grantor and grantees. . . I charge you . . that where an instrument restricting the use, when executed in pursuance of a general scheme for the purpose of preserving the character of real estate as residence property by present owners and future purchasers of the same, the restriction creates an equitable servitude; and if you find in this case that there was a general scheme by the Cobbs Land Co., for the purpose of preserving this acreage for residence purposes among other things, and it was held out to purchasers, and these plaintiffs purchased their property with that restriction and as a part of the consideration, then I charge you that any person with notice can not legally violate those restrictions; and if those restrictions are violated, then any one or more of the owners of lots within that subdivision would have a right to have it enjoined. I charge you, if you find that there was no general plan for the subdivision of this property, or that the plaintiffs did not purchase their lots with reference to any reservation in that plan, and the Cobbs Land Co. conveyed a portion of this property to purchasers with reservations and to others without reservations, and there was no such plan, then the contract between the Cobbs Land Co. and such purchasers would only bind the parties to those contracts, but would not bind others if the plan was as I have stated. I charge you also, that if some lots have restrictions imposed upon them and some have not, if the general plan has been maintained from its inception, if it has been understood and relied upon by all parties at interest, and it has been known to all purchasers subsequently, or by reasonable prudence could have been known, then it would be binding upon all purchasers equally; but if otherwise, it would not be. I charge you, . . that the burden of a restrictive agreement does not pass to the assignee where such assignee is purchaser of the land for value and without notice, actual or constructive, of the agreement. I further charge you that a-purchaser of land is conclusively charged with notice of a restrictive agreement or covenant contained in a deed which constitutes one of the muniments of his own title; and generally this is true whether the deed containing such covenant is recorded or not. I charge you further that the grantee of a lot is chargeable with notice of a building restriction which was contained in the grantor’s deed to an adjoining lot to another and covered both lots, where an examination of the records would have disclosed such covenant, and reasonable prudence required such examination to be made; and that a purchaser is chargeable with notice by implication ,of every fact affecting the title and discoverable by an examination of the deeds or other muniments of title of his grantor, and of every fact as to which the purchaser by reasonable diligence ought to become acquainted.” Mr. Alexander: “Would your honor be so good, in connection with'that, to explain a little more fully about a deed which affects another lot, which your honor just charged?” The court: “I charge you, in this connection, if the examination of a deed affecting another lot does not disclose any general plan or scheme, that that examination would not of itself be notice of the reservation in other deeds. I charge you in this ease, if you find from the evidence that the Cobbs Land Co., prior to the purchase of this land by these plaintiffs had subdivided this acreage and held it out to the public and to these plaintiffs for sale with the agreement and understanding that the reservations contained in the conveyances before made were to be made in- all the conveyances to subsequent-purchasers, that that agreement and contract established a covenant running with the land, and every subsequent purchaser, with notice of that agreement, either actual or constructive, would be bound thereby. I charge you, if you find from the evidence the facts as just detailed to you, and you find that neither Owens or the Colonial Hills Co., nor Mr. Phillips, had notice of this reservation in these deeds, that they would not be bound by it.”

We are of the opinion that the foregoing charge fully and fairly stated the contentions of the parties and also the law applicable to the case, and therefore that the requests to charge were properly refused for the reasons set out above. See Hancock v. Gumni,, supra.

Certain excerpts which were taken from the foregoing charge were excepted to on the ground that they were not authorized by the evidence. We are of the opinion that these charges as given were authorized by the pleadings and the evidence, and are not subject to the criticism directed against them.

Ground 16 of the amended motion is merely a recapitulation of other grounds which are dealt with in the foregoing divisions of the opinion.

The verdict is authorized by the evidence, and the court below did not err in refusing a new trial.

Judgment affirmed.

All the Justices concur.