Deck, Inc. v. Noe

• Decision Date: 26 May 1966
• Docket Number: No. 23466,23466
• Citation: 222 Ga. 189,149 S.E.2d 68
• Parties: The DECK, INC., et al. v. Irene M. NOE.
• Court: Georgia Supreme Court

Page 68

149 S.E.2d 68

222 Ga. 189

The DECK, INC., et al. v. Irene M. NOE.

No. 23466.

Supreme Court of Georgia.

May 26, 1966.

Cowart, Sapp, Alaimo & Gale, G. B. Cowart, Robert Asa Sapp, Brunswick, for appellants.

Murray M. Silver, Brunswick, for appellee.

Syllabus Opinion by the Court.

MOBLEY, Justice.

The petitioner, Irene M. Noe, brought an action seeking to enjoin defendants from violating a restrictive covenant in a deed in that defendants had constructed a building on the property for the purpose of the sale of alcoholic beverages in violation of the covenant. Defendants filed general demurrers to the petition. The trial court overruled these demurrers and granted a temporary restraining order. Defendants appeal from the ruling on the demurrers. Held:

1. Defendants, appellants here, contend that the rule as set out in Torrance v. McDougald, 12 Ga. 526(2) '* * * That general and unlimited terms are restrained and limited by particular recitals, when used in connextion with them * * *' is to be applied to the covenant in this case and that, when so construed, the covenant would not prohibit the use of the property proposed by appellants. The covenant is as follows: 'It is hereby understood and agreed that the real property hereby conveyed shall not be used for any purpose other than the erection, maintenance and operation thereon of a motor court, and in this connection the sale of petroleum products and the operation of a restaurant upon said property are expressly prohibited.' The rule of construction urged by appellants is not applicable to this covenant because the term 'motor court' as used in the covenant is not a general or unlimited term. It is a specific term and the use of the land is restricted specifically to the 'erection, maintenance and operation thereon of a motor court.' The provision 'and in this connection the sale of petroleum products and the operation of a restaurant upon said property are expressly prohibited' does not create an ambiguity, nor is it in conflict with nor does it modify the provision that the property may only be used for a motor court. The manifest intent of the grantor was that the property may only be used for a motor court, and particularly not for a restaurant or service station. The manifest intent being the cardinal rule of construction will control over the rule of strict construction against restrictions on the use of land. Voyles v. Knight, 220 Ga. 305, 306, 138 S.E.2d 565.

We find the following from cases citing the rule in Torrance v. McDougald, supra, that 'general and unlimited terms are restrained and limited by particular recitals, when used in connexion with them.' In Ross v. Jones, 151 Ga. 425, 428, 107 S.E. 160, Section I of a statute provided that upon the passage of the Act the court should appoint an additional judge in the Macon Circuit. Section XI provided that the Act shall not go into effect until November 1st, 1920. Laws 1920, p. 95. The court held that the latter provision prevailed, as it was specific and that 'upon' used in Section I could mean after approval.

In McCann v. Glynn Lumber Co., 199 Ga. 669, 34 S.E.2d 839 (Jenkins, P.J., dissenting), a contract for sale of timber recited that in consideration of $35,000 the vendor and vendee agree to the following: the vendor granted vendee a license to cut timber of described kinds and sizes on described lands and provided that vendees were to pay $12.50 per thousand for the timber and that the lease should terminate on December 31, 1946. Vendor contended that the vendee had a right to cut only $35,000 worth of timber, and vendee that he could cut and remove all the timber he could prior to the expiration of the lease and pay $12.50 per thousand for it. The majority held that the latter provision was specific and would prevail over the general.

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