187 Ga. 229 | Ga. | 1938
Counsel for the defendant in error contends: 1, that “the exact language of the covenant in question nowhere states that one residence can not be erected on less than a ‘building lot’ as defined in the restriction, but prohibits the erection of viore than one residence on a building lot. Can it not, therefore, be said that the purpose of the restriction is to prevent the erection of two or more residences on a ‘building lot/ rather than to prevent the erection of one residence on a smaller frontage than sixty feet ?” 2, that the plaintiff in error is estopped from enforcing clause 4 of the restrictive covenant, because of the conduct of his predecessors in title, J. Ealston Lattimore and Harry Fulenwider. 3, that the restrictive covenants in the deed in question are rendered void by the act of 1935, which act added to § 29-301 of the Code the following proviso: “Provided, however, thab covenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws.”
We do not think clause 4 of the restrictive covenant in the deed involved here susceptible of the construction sought to be
We consider it unnecessary to determine whether the conduct of Lattimore and Fulenwider, remote grantors of the plaintiff, as alleged in the plea in bar, was such as to estop them from invoking the restrictive covenants in the deed from Ardsley Park Land Corporation to Lattimore. Neither of them is seeking to enforce any covenant. When Lattimore executed to the defendant the deed to lot 183, he included therein by reference said covenants, and thus in effect incorporated them in this deed. Counsel for the defendant cites no authority to sustain the contention that the alleged conduct .of Lattimore and Fulenwider, as stated in the plea in bar, estops the plaintiff from relying on and enforcing the covenants contained in the deed executed' by Lattimore to the defendant. The defendant, Pindar Eeal Estate Company, was conclusively charged with notice of the restrictive covenant contained in the deed from Ardsley Park Land Corporation to Latti
We do not think the refusal of an injunction in this case can be upheld for the third reason urged by the defendant, “that under the provisions of the act approved March 28, 1935, . . covenants running with the land shall not run for more than twenty years in municipalities which have adopted zoning ordinances; and that there being a zoning ordinance in the City of Savannah and the said covenants having run for more than twenty years they are now void and of no effect.” The Code, § 29-301, declares: “The purchaser of lands obtains with the title, however conveyed to him, at public or private sale, all the rights which any former owner of the land, under whom he claims, may have had by virtue of any covenants of warranty of title, or of quiet enjoyment, or of freedom from incumbrances, contained in the conveyance from any former grantor, unless the transmission of such covenants with the land is expressly negatived in the covenant itself.” By the act of 1935 (Ga. L. 1935, p. 112) was added the following: “Provided, however, that covenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws.” Whether the General Assembly could lawfully have made this proviso retroactive in its operation is not now before us for determination. The proviso did not purport to have such effect. The Code section as amended was operative at the time the defendant acquired title to lot 183, and under the proviso the covenant incorporated in his deed, so far as the covenant restricted the land to certain uses, would expire in twenty years. “The settled rule for the construction of statutes is not to give them a retrospective operation, unless the language so imperatively requires.” Moore v. Gill, 43 Ga. 388, 390; Bank of Norman Park v. Colquilt County, 169 Ga. 534 (2) (150 S. E. 841).
The court erred in refusing an injunction.
Judgment reversed.