151 Ga. 667 | Ga. | 1921
From the foregoing statement of facts it will be noted that the Atlanta Banking and Savings Company (for convenience herein referred to as tbe banking company) on November 6, 1908, owned a tract of land in the city of Atlanta, fronting 810 feet on the south of Ponce de Leon avenue, and extending south from Ponce de Leon avenue 500 feet, more or less, to Blue Ridge avenue. The banking company subdivided the tract of land, and offered for sale the several parcels thereof fronting on Ponce de Leon avenue. Admittedly the banking company contracted to sell to Mrs. C. Helen Plane, one of the plaintiffs, a parcel of the entire tract fronting 120 feet on Ponce de Leon avenue and running south 220 feet. In its contract with Mrs. Plane the banking company agreed that re a building line of forty feet is to be established on this property, and all oth'er property of the Atlanta Banking and Savings Company fronting on Ponce de Leon avenue.” In its bond for title to Mrs. Plane the banking company covenanted that “ part of the consideration of this contract is that no building shall be erected on the property of the Atlanta Banking and Savings Company nearer than forty feet to Ponce de Leon avenue.” It appears that the banking company did in fact cause the tract to' be subdivided and a plat thereof made. The map or plat introduced in evidence on the interlocutory hearing shows a line forty feet south of Ponce de Leon avenue and parallel thereto, marked “ build
Restrictive agreements are sometimes spoken of as creating covenants running with the land, and sometimes as creating reciprocal negative easements. Referring to Tulk v. Moxhay, 2 Ph. 774, a leading case on the subject, Jessel, M. R., in London etc. Co. v. Gomm, 20 Ch. Div. 562, 583, said that the doctrine of the case, rightly considered, appeared to him “to be either an extension in equity of Spencer’s Case [5 Rep. 16] to another line of cases, or else an extension in equity of the doctrine of negative easements, such, for instance, as a right to the access of light, which prevents the owner of the servient tenement from building so as to obstruct the light.” Many American courts seem to have adopted the supposed analogy between restrictive agreements and negative easements. See Peck v. Conway, 119 Mass. 546; Webb v. Robbins, 77
.The Civil Code, § 4535, provides: “If one with notice sell to one without notice, the-latter is protected; or if one without notice sell to one with notice, the latter is protected, as otherwise a bona fide purchaser might be deprived of selling his property for full value.” This general doctrine is applicable here. McCusker v. Goode, 185 Mass. 607 (71 N. E. 76). There is evidence in the record tending to show that the plaintiff in error, at the time of his purchase of lot 5, had notice of facts and circumstances sufficient to put him on inquiry and to lead to the discovery of the agreement. If, however, Mrs. Earland, through whom the plaintiff in error claims, was without notice actual or constructive, at the time of her purchase of the lot, of the restrictive agreement, the plaintiff in error must be deemed to stand in the position of a bona fide purchaser for value. It is not contended that Mrs. Farland had actual notice or knowledge, at the time of her purchase, of the •restrictive agreement or of the general scheme of development involving the building restriction. It is not contended that she had actual notice or knowledge of the contract between the banking company and Mrs. C. Helen Plane, one of the plaintiffs, or that she had such notice or knowledge of the bond for title issued by the banking company to Mrs. Plane or to'W. R. Jester. It is conceded that at the time of her purchase of lot 5 none of the lots in the subdivision had been improved. Defendants in error seek to charge Mrs. Earland with notice of the restrictive agreement, by reason of facts and circumstances hereinafter considered. Mrs. Plane’s bond, for title was duly recorded in the office of the clerk
We have said that if Mrs. Farland, through whom the plaintiff in error claims, was without notice, actual or constructive, of the restrictive agreement at the time of her purchase of the lot, the plaintiff in error must be deemed to stand in the position of a bona fide purchaser for value. We do not overlook the rule in equity that to constitute one a bona fide purchaser in the full sense, three conditions must concur: he must pay the purchase-money, or at least place himself in a position where he is in all events bound to pay the purchase-money; he must get title; and he must pay the purchase-money and get title before notice of the rights of third persons. See Gleaton v. Wright, 149 Ga. 220 (100 S. E. 72). We are not called upon to decide whether the rule in equity is applicable to the case at bar, because the evidence in the record entirely fails to show that either Mrs. Farland or her transferee had notice or knowledge, actual or constructive, of the restrictive agreement before the payment of the purchase-money and the execution and delivery of the deed by the banking company to the lot involved in this case.
The evidence to the admission of which exception is taken was admissible for the purpose of showing a general scheme* of development involving a building restriction, but was inadmissible to show that Mrs. Farland purchased the lot with notice, either actual or constructive, of the restrictive agreement.
Judgment reversed.