Burch v. Ragan

• Decision Date: 22 September 1955
• Docket Number: Nos. 35792,35793,No. 2,s. 35792,2
• Citation: Burch v. Ragan, 92 Ga.App. 605, 89 S.E.2d 541 (Ga. App. 1955)
• Parties: Belle Moore BURCH v. R. T. RAGAN et al. R. T. RAGAN et al. v. Belle Moore BURCH
• Court: Georgia Court of Appeals

Page 541

89 S.E.2d 541

92 Ga.App. 605

Belle Moore BURCH v. R. T. RAGAN et al.

R. T. RAGAN et al. v. Belle Moore BURCH.

Nos. 35792, 35793.

Court of Appeals of Georgia, Division No. 2.

Sept. 22, 1955.

Syllabus by the Court.

1. The petition stated a cause of action for the relief sought. Accordingly, the judgment of the trial court overruling the demurrers of the defendants is without error.

2. The trial court erred in denying the plaintiff's motion for a new trial, the verdict for the defendants not being supported by the evidence, which on the other hand demanded a verdict for the plaintiff.

Mrs. Belle Moore Burch filed an action for a declaratory judgment, in the Superior Court of Dodge County, against nine named defendants, they being grantors or the heirs of grantors of property conveyed to her, seeking a construction of a deed covenant as to the property conveyed. The case went in default, except as to the defendants R. T. Ragan and Charles Smyly, who filed demurrers and an answer to the petition. The defendants' demurrers were overruled after various amendments; the case proceeded to trial, and a judgment was rendered in favor of the defendants. The plaintiff made a motion for a new trial, which was denied, and also a motion to construe and modify the judgment based on said verdict, which latter came on for hearing on a rule nisi after the filing of an answer thereto, and which motion was denied. The main bill of exceptions assigns error on these judgments. The defendants by crossbill of exceptions assign error on the overruling of various demurrers to the petition.

Will Ed Smith, Eastman, for plaintiff in error.

Hal M. Smith, D. D. Smith, Eastman, for defendants in error.

TOWNSEND, Judge.

1. The rulings on demurrer, which are assigned as error in the cross bill of exceptions, will be dealt with first for the sake of continuity, as the case is being reversed on the main bill, and the parties will be referred to as they appeared in the trial court. Counsel for the defendants states that 'the only question for decision in this cross bill of exceptions is whether or not the well pleaded facts of the petition as amended set out a cause of action,' and that 'a proper construction of the coverant contained in this deed demands a judgment sustaining the general demurrer for the reason there is a covenant restricting the property and its use solely for residential purposes.'

The petition alleges that the petitioner purchased from the defendants or their predecessors in title a certain described city lot, the deed to which contained the following covenant: 'Party of the second part, for herself, her heirs and assigns, agrees that the above described property shall be used solely for residential purposes. It is agreed and understood, however, that this covenant shall be considered fully satisfied and complied with, when party of the second part erects on said premises a structure for residential purposes'; that the property in question is zoned for business or residential purposes; that the petitioner has fully satisfied and complied with said covenant by erecting on said premises a structure which has been used and is being used for residential purposes; that she contends this act has satisfied the said covenant, which the defendants deny; that the defendants are informing the public that said property cannot be used for other than residential purposes; that the petitioner leased the said property to one Stuart Duggan for business purposes at a monthly rental of $100 per month with an option to purchase, Duggan proposing to construct and operate a business enterprise on said property, but such lease was rescinded because of the defendants' wrongful assertion that the property could not be used for business purposes; that, because of the fact that this covenant appears of record, and the acts of the defendants, the petitioner is unable to sell or lease her land for business purposes; that it would be exceedingly dangerous for her to proceed herself, expending $20,000 or other large sums to construct a building for business purposes in the face of threatened injunction proceedings by the defendants; that an actual controversy exists, for which reason the petitioner prays that the court enter a judgment declaring the petitioner's rights in the matter and finding that the restrictive covenant in the deed be determined to have been fully satisfied and complied with.

The cardinal rule of construction of contracts is to determine the intention of the parties thereto, and that construction will be favored which gives meaning and effect to all of the terms of the contract over that which nullifies and renders meaningless a part of the language therein contained. Atlanta Knoxville & N. R. Co. v. McKinney, 124 Ga. 929, 53 S.E. 701, 6 L.R.A., N.S., 436; Dooley v. Savannah Bank & Trust Co., 199 Ga. 353, 34 S.E.2d 522; Simpson v. Brown, 162 Ga. 529, 134 S.E. 161, 47 A.L.R. 865. The first sentence of the covenant, to the errect that the grantee plaintiff...