163 Ga. 580 | Ga. | 1927
(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 defend
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
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
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.