Ward v. Parks

166 Ga. 149 | Ga. | 1928

Hines, J.

1. Where on the hearing of an application for an interlocutory injunction the judge overrules objections urged by the defendant to an amendment offered by the plaintiff to his petition, and hears and overrules general and special demurrers to the petition, and grants such injunction, the defendant can except to said rulings and seek to review them in one bill of exceptions; and a motion to dismiss the writ of error, which was sued out within twenty days from the date of said rulings, upon the ground that, the writ being a fast one, none of such rulings were such as could be reviewed, is without merit. Garolina Portland Cement Co. v. Walker Roofing Co., 163 Ga. 33 (135 S. E. 503).

(а) In equity causes, where extraordinary relief is sought, the trial court may pass upon and determine all demurrers in such causes at any interlocutory hearing, even before the appearance term. Acts 1925, p. 97; 13 Park’s Code Supp. 1926, § 5630. When the trial judge passes upon and overrules a demurrer to a petition at such hearing, his judgment is reviewable under the Civil Code, § 6152. His judgment granting a temporary injunction is reviewable under § 6153. Both judgments can be reviewed in one bill of exceptions, when it is sued out in proper time.

(б) Applying the above rulings, the motion to dismiss is denied.

2. Where the owner of two adjoining lots sells one of them under an agreement that he will not erect upon the other any building within five feet of the dividing line of the lots, such an agreement will bind subsequent grantees of the latter lot with notice of the agreement, whether named or not in any instrument of conveyance under which such grantees claim title to the latter, and although there is no privity of estate between the maker of such agreement and the person who violates it. Rosen v. Wolff, 152 Ga. 578 (110 S. E. 877); Renfroe v. Alden, 164 Ga. 77, 80 (137 S. E. 831).

3. The petition in this case sets up a valid restrictive agreement between the owner of these two lots and the first purchaser from him of one of them, and alleges that the purchaser of the other lot acquired title thereto with notice of this restrictive agreement. Under these allegations the petition set’ forth a cause of action, and the trial judge did not err in overruling the general demurrer. Certain grounds of special demurrer, if originally meritorious, were met by an amendment to the petition, and the other grounds were without merit. This being so, the trial court did not err in overruling the grounds of the special demurrer.

4. The petition alleged that the defendant acquired title to his lot with notice of this building restriction. In his answer the defendant denied this allegation. On the hearing of the application for a temporary injunction there was no proof of personal notice to the defendant of this building restriction, and in his testimony he denied all notice thereof. The plaintiff introduced in evidence a bond for title from Horwitz to Bowen to the lot of the defendant, and an agreement between Bowen and the plaintiff touching the establishment of an alley between these two lots. The bond for title contains the building restriction. It was recorded October 7, 1916, with this entry on its face: “This bond for title surrendered and canceled,” dated August 5, 1916, and signed by the obligee therein. The clerk, on October 7, 1916, entered upon the face of the record of the bond that it was satisfied. The above agreement, establishing an alley between these lots, recited the existence of such restriction, and was recorded April 2, 1918. Plaintiff contends that the record of these instruments was constructive notice to the defendant of this building restriction. It does not appear from the pleadings or evidence that the defendant claims title to his lot either under the obligee or under either of the parties to the agreement establishing the alley between these lots. Held:

No. 6311. March 14, 1928.

(а) Every bond for title, bond to reconvey, contract to sell or convey realty or any interest therein, and any and all transfers or assignments thereof shall bo filed and recorded in the office of the clerk of the superior court of the county where the land referred to therein lies. The filing and recording of any of said instruments may be made at any time, but such instruments lose their priority over subsequent instruments of the above character or deeds from the same vendor, obligor, transferor, or assignor, which may be executed subsequently but previously filed for record, and taken without notice of the former instrument. Acts 1921, pp. 157, 158; 9 Park’s Code Supp. 1922, § 4215(1).

(б) But the record of such instruments is not constructive notice to a purchaser of land thereby affected, where he does not claim under the holder or some assignee thereof. Felton v. Pilman, 14 Ga. 530; Coursey v. Coursey, 141 Ga. 65, 68 (80 S. E. 462) ; Hinton v. McBride, 147 Ga. 603 (95 S. E. 1) ; Hancock v. Gumm, 151 Ga. 667 (3) (107 S. E. 872, 16 A. L. R. 1003).

5. Applying the principles just announced, the evidence failed to sustain the allegation. that the defendant acquired title to his lot with notice of this restrictive agreement; and the judge erred in granting the injunction. Judgment reversed.

All the Justices concur. Jones & Strolher, for plaintiff in error. G. B. Tidwell and E. E. Phillips, contra.