26 S.E.2d 431 | Ga. | 1943
1. As a general rule, the owner of land in fee has the right to use it for any lawful purpose. Where neither the owner's deed nor any deed in his chain of title contains any restrictions, but restrictions as to its use and alienation are sought to be placed thereon, based upon an extraneous agreement by his predecessor in title and by notice to the owner, the restrictions must be established by evidence that is clear and beyond a reasonable doubt. The evidence was not sufficient to authorize a jury to find that the purchaser received notice that the lot he purchased was restricted as to its use.
2. Where an equitable petition was filed, seeking an injunction and other relief against the defendant individually, and the plaintiff offered an amendment praying that defendant in the capacity of executor of the estate of another, not a party to the suit, be enjoined, it was proper to disallow such amendment.
The petition alleged, and it was admitted, that the deed from Mrs. Shreve to Atkinson was executed on September 26, 1941. The evidence showed that at the time of the alleged contract in 1924 or 1925 to restrict the sale of the lots this particular lot was owned jointly by T. C. Shreve and his wife, Mrs. L. L. Shreve, and that Mrs. Shreve died before the execution of the deed from Mrs. Shreve to Atkinson. The record does not disclose in what way, if any, Mrs. Shreve acquired the title to Mr. Shreve's interest in the lot, whether by deed, by will, inheritance, or in any other manner. The plaintiff sought to establish the agreement between those named above, to restrict the sale and use of the lots, by proving an oral contract between the parties; and as to this the court held: "The ruling is that this witness cannot go into an agreement he had with the other parties, an oral agreement concerning restrictions on the land." The plaintiff introduced evidence (detailed in the opinion infra) for the purpose of establishing the fact that at the time Atkinson purchased this property he did so with full knowledge that the property he purchased had been restricted against the sale to a negro.
During the trial the plaintiffs offered an amendment to the petition, as follows: "Plaintiffs pray that defendant Mrs. L. L. Shreve be permanently enjoined from selling any property owned by her, whether individually or as executrix of the estate of T. C. Shreve, deceased, or as sole heir of said T. C. Shreve, in the J. A. Coursey subdivision as shown by the plat recorded in plat book 8, page 93, *184 Fulton County Records, to any negro or any person of negro blood." Upon objection, this amendment was not allowed. On motion the court granted a nonsuit, and the plaintiffs excepted.
1. Whether or not the court erred in not admitting parol testimony to establish a contract to restrict the sale of lots to negroes, or whether there had been such part performance of this contract by the plaintiffs as would render it a fraud if the court did not compel performance, or whether the court erred in excluding certain evidence, need not here be determined. We are of the opinion, inasmuch as neither the deed to Atkinson nor the deed of any predecessor in the title contained any restriction as to its sale or use, that the evidence introduced to establish that he had notice of such restriction is insufficient in law so to do. "Restrictions on the use of real property will not be enlarged or extended by construction, and any doubt will be construed in favor of the grantee. . . When it is sought to restrict one in the use of his own private property for any lawful purpose, the ground for such interference must be clear and indubitable." Randall v. Atlanta Advertising Service,
The proof to establish notice to Atkinson of restrictions as to alienation or use of this property was as follows: J. F. Cloud Sr. testified: "I recall when the negro Atkinson . . first began to do work on his lot. I do not know the exact date, but it was the latter part of August or the first of September, 1941. I talked to Atkinson at that time. . . I happened to see some lumber on this lot, a small pile of lumber, and about three people down there at work. . . I . . asked him what he was doing. He said he was fixing to build a house, and I says, `The heck you are,' and he says, `Yes,' and I turned around and walked off, and he says, `Well, what is wrong about it?' And I said there was plenty. . . He met Mr. Sargent and I the Sunday following that week, . . the second Sunday, over at Mr. Sargent's house. . . We told him that he was starting that house over there, and that the citizens of that community considered that as restricted property, and that we didn't want him to build a house on it. I told him against what it was restricted; that it was restricted against the sale to colored people. This second conversation was just about seven or eight days from the first time I spoke to him. It was the latter part of September, or August, or the first of September. I don't remember the exact date. . . He hadn't practically done anything on the lot by the time of the second conversation." H. T. Sargent testified: "I have had occasion to talk to the defendant, John L. Atkinson, about restrictions on the property involved in this case. That was some time near the early part of September. . . I couldn't say just the date, but it was the latter part of August or September, or the first of September, 1941. At the time I talked *186 to him he had just started to work. . . I drove over to see these parties that were building the house, and Atkinson was there. . . They had just built a little tool-house and seemed to be cleaning off and preparing to build a little dam or something in the branch. . . They were going to make cement blocks out of this creek sand. . . I said, `Atkinson, . . as a citizen I come over here to you in the daytime, but I want it to be very definitely understood with you and me that I am making no threats to you, and ain't asking you to stop this construction, but I do want to tell you that I am afraid you are going to spend money here that won't realize you much, and then I think you will be very unhappy living here, building here, because it is held out in the mind of the public generally that this is restricted property on this side of the street. Those people, I made this remark, will co-operate with you most anyway, but not on this side of the street, because of the public sentiment that is there.' As to whether I told him that the property was restricted against negroes, I told him that it was my understanding and it was the understanding of the public generally that all of this property was restricted, because it had been represented to myself as well as many others that this property was all restricted. However, I had not gone into the deeds to see if it was restricted."
Such evidence is not sufficient to authorize the jury to find that Atkinson received notice that the lot he purchased was restricted against the purchase or use of the lot by a negro. It does not specifically identify the lot as being covered by any restriction referred to, nor is the evidence above pertaining to restrictions definite and certain as to the fact of a restriction; but was in the language of the witnesses a "public understanding," or that "the citizens of that community considered that as restricted property." Neither of which, in its last analysis amounts to more than a rumor, which can never be the basis of notice. Black v. Thornton,
While we have reached the foregoing conclusion in reference to the evidence being insufficient to constitute notice, we are not unmindful that when the case was previously here (
2. During or at the conclusion of the trial the plaintiffs submitted an amendment to the petition, praying that Mrs. L. L. Shreve be permanently enjoined from selling to a negro any property in the subdivision owned by her individually as the sole heir of T. C. Shreve, or as the executrix of the estate of T. C. Shreve. This amendment was properly disallowed. There was no evidence that Mrs. Shreve individually owned any other lot in the subdivision, and no evidence that she was the sole heir of T. C. Shreve and *188
owned any lot as such. The amendment, by seeking an injunction against Mrs. Shreve as the executrix of the estate of T. C. Shreve, who had not been made a party, sought an injunction against a person who was not a party to the suit. Smith v.Ardis,
Judgment affirmed. All the Justices concur.