52 S.E.2d 859 | Ga. | 1949
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,
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.,
3. Restrictions upon the use of land must be clearly established and strictly construed. Randall v. Atlanta Adv. Service,
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.
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 *230 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.