Anthony v. Stephens

46 Ga. 241 | Ga. | 1872

Warner, Chief Justice.

This was a bill filed by the complainants against the defendants, praying for an injunction to restrain Austin Brighthaupt and his wife, Rose, persons of color, from exercising acts of ownership over a certain city lot in the city of Macon, or further building thereon, on the ground that there is a clause in the deed conveying the lot to Stephens by the complainants, dated 4th March, 1872, under whom it is alleged the defendants claim title, in the following words: “ On the express understanding and agreement, on the part of the said Alexander II. Stephens, that the lot of land so conveyed is never to be sold to or occupied by negroes.” We are inclined to the opinion that the first deed executed by Mrs. Anthony to Stephens, with the full knowledge and consent of her husband, would have estopped him from setting up a claim or title to the land, and that Stephens and those claiming under him acquired a good title to the lot, as against the complainants, under that deed, wholly independent of the subsequent deed, executed the 4th of March, 1872, containing the alleged restriction. The defendant, Austin Brighthaupt, denies all knowledge of the restriction eontained in the deed of 4th of March, 1872, when he purchased and paid for the lot, and it appears that he went forward and built a house on the lot before the complainants took any steps to restrain him. The words contained in the deed of 4th March, 1872, are words of covenant, and not words of condition, and the evidence of the insolvency of the defendants is not at all satisfactory.

In view of the facts disclosed in the record of this case we will not interfere with the exercise of the sound discretion of the presiding Judge of the Court below in refusing to grant the injunction prayed for.

Let the judgment of the Court below be affirmed.