Dooley v. Savannah Bank & Trust Co.

• Decision Date: 06 June 1945
• Docket Number: 15103,15117.
• Citation: 34 S.E.2d 522,199 Ga. 353
• Court: Georgia Supreme Court
• Parties: DOOLEY v. SAVANNAH BANK & TRUST CO. FISHER v. SAME.

34 S.E.2d 522

199 Ga. 353

DOOLEY v. SAVANNAH BANK & TRUST CO.

FISHER v. SAME.

Nos. 15103, 15117.

Supreme Court of Georgia

June 6, 1945

Syllabus by the Court.

1. Where a defendant filed an answer, admitting allegations in the plaintiff's petition and asserting affirmative defenses, and the petition was later amended, the admissions in the answer to the original petition did not apply to the amendment. Accordingly, the plaintiff's amendments had no bearing upon the sufficiency of the alleged defenses, as against the motion to strike.

2. Where an owner of land facing a street divides the land into lots and sells them to various persons under a general plan or scheme of restrictive covenants, by inserting in his deed to each purchaser a stipulation that the property is not to be sold, rented or disposed of to any person not of the white or Caucasian race, the right to enforce the covenant is not limited to the original grantor, but an owner of one lot may enforce the covenant in equity against the owner of another lot, so far as the question of parties is concerned.

(a) Nor would it be material in such case whether the lot of the complainant or the lot of the defendant was first conveyed by the common grantor.

(b) Under the preceding rulings, there was no merit in the contention that the plaintiff, as administrator representing a purchaser from the original grantor, had no such right or interest in the covenant as would authorize it to sue in equity thereon, as against the defendants who were owners of other lots which they held as remote grantees under the same original vendor.

3. The part of the answer based on changed conditions, and alleging among other things, that, since the covenants were executed unrestricted sections lying north and west of the restricted area had become 'predominantly colored' residential sections, and that a number of persons of the colored race had acquired lots even in the restricted area, did not allege any valid reason why the covenant should not be enforced against the defendants, at the instance of the present plaintiff.

4. Nor did the answer allege sufficient facts to raise an estoppel against the plaintiff, because of acquiescence by the latter in violations of the covenant by owners other than the defendants, in selling more remote lots to persons of the colored race.

5. The covenant against sale or disposition to any person not of the white or Caucasian race was not invalid under the 14th Amendment to the United States Constitution.

6. Nor was there any merit in the contention that the covenant in question, executed more than twenty years before the suit, had expired by operation of law under the act of 1935, declaring that 'covenants restricting lands to certain uses shall not run more than 20 years in municipalities which have adopted zoning laws.'

7. Under the preceding rulings, there was no merit in any of the alleged 'defenses,' and they were all properly stricken on motion of the plaintiff.

No. 15103:

Johnson & Corish and Hester & Clark, all of Savannah, for plaintiff in error.

Shelby Myrick, of Savannah, for defendant in error.

No. 15117:

R. W. McDuffee, of Savannah, for plaintiff in error.

Shelby Myrick, of Savannah, for defendant in error. On May 10, 1944, Savannah Bank and Trust Company, as administrator with the will annexed of Peter Rabey, filed a suit for injunction against Louise Fisher and Margarita H. Dooley, trustee, to restrain the defendants from selling or disposing of described tracts of land 'to any person not of the white or Caucasian race,' in alleged violation of covenants contained in deeds under which the defendants held. On June 5, the defendants filed separate answers to the petition. On September 7, the plaintiff filed two amendments, and on the same date filed a motion to strike from the defendants' answers certain 'defenses' asserted alike in both answers, and numbered therein 1 to 6, inclusive. On September 13, the judge entered an order sustaining this motion, to which ruling each of the defendants excepted pendente lite. Later, on final trial, after introduction of evidence for the plaintiff only, the judge directed a verdict, in favor of the plaintiff, for a permanent injunction. In separate bills of exceptions, the defendants complained of the direction of the verdict, because of the antecedent rulings striking these 'defenses.'

The petition alleged: The plaintiff is administrator cum testamento annexo of Peter Rabey, late of said county. Lots 12, 13, 14, 15, 16, and 17, Myers Ward, in the City of Savannah known as 617 to 623 West 42nd Street, are the property of said estate and are in the control of the plaintiff as administrator, said Peter Rabey having acquired the same by deed from H. H. and William Lattimore on November 17, 1917, recorded in the clerk's office of Chatham superior court.

Said deed contains the following provision and covenant: 'But said described property is sold and conveyed with the following covenants and restrictions which shall run with the land: First. The purchaser, his heirs and assigns, agree that the property is not to be sold, rented or disposed of to any person not of the white or Caucasian race.'

The defendant Fisher is the owner of lot 19 and the eastern half of lot 20, in said Myers Ward, known as 631 West 42nd Street, and the defendant Dooley is the owner of lot 18 in said Myers Ward, known as 629 West 42nd Street, and the deeds to their predecessors in title, and particularly

the deeds from Lattimore and Lattimore, contain the identical covenant which has been quoted above from the deed to Peter Rabey.

All of these averments were unqualifiedly admitted in each of the answers. The street referred to by the plaintiff as 'West 42nd' is sometimes mentioned in the answers as 'West Forty-second' and at other times merely as 'Forty-second.'

The petition did not allege the date of the deeds from Lattimore and Lattimore under which the defendants held, nor state who were the immediate grantees in such deeds. The facts as to these matters, however, were shown by the answers to be as follows:

The defendant Fisher alleged that on June 25, 1918, H. H. Lattimore and William Lattimore conveyed to Carl J. Craft lot 19 and the eastern 15 feet of lot 20, Myers Ward, Savannah, by deed which contained the covenant referred to in the petition, and that said Craft subsequently conveyed to this defendant said property by a deed which 'made no reference to the aforesaid covenant.'

The defendant Dooley alleged that on February 9, 1914, H. H. Lattimore and William Lattimore conveyed to O. A. Craft lot 18 in Myers Ward, Savannah, by deed which contained the covenant here involved, and said lot by mesne conveyances 'came into the ownership of' this defendant on May 23, 1918, by a deed which 'made no reference to the aforesaid covenant.'

Additional facts, especially the several 'defenses' alleged, will be stated in the opinion.

BELL, Chief Justice.

1. The two writs of error, being similar with respect to the questions raised, will be dealt with in one opinion.

There is no contention that the petition did not state a cause of action, or even that the plaintiff did not prove its case as laid; the only questions for determination being those raised by the motion to strike the alleged defenses.

There were two amendments to the plaintiff's petition, but the contents of these amendments have not been and need not be stated. The defendants had already filed their answers, and were not required to reply to these amendments. Accordingly the amendments have no bearing upon the sufficiency of the alleged defenses to withstand the motion to strike. Watson v. Barnes, 125 Ga. 733(1), 54 S.E. 723; Brown v. Atlanta, Birmingham & Atlantic Railway Co., 131 Ga. 259(1), 62 S.E. 186; Kytle v. Kytle, 180 Ga. 833(3), 181 S.E. 81.

2. As to the several defenses alleged, the answers of the defendants were substantially identical, and this being true, it will be sufficient in this connection and throughout the remainder of this opinion, to refer only to the answer of the defendant Fisher. It may be further stated, however, that in the brief filed in this court by counsel for Dooley, only the first three of the defenses are insisted on, the other three being expressly abandoned. Counsel for Fisher insists upon all six.

The defendant Fisher, in the part of her answer designated as 'Defense One,' after alleging the facts shown in the preceding statement as to the source of her title, further alleged: 'Defendant shows that the said covenant by its own terms is limited to the said lot and portion of lot and runs only and solely to the said grantors, H. H. Lattimore and William Lattimore; * * * that it was placed thereon solely for the benefit of Lattimore and Lattimore; that the plaintiff cannot complain and has no standing in this action as to lot 19 and the eastern 15 feet of lot 20, Myers Ward, for the reason that neither the plaintiff nor any persons claiming by or through it or through the said estate of Peter Rabey has ever had any interest or ownership in lot 19 and the eastern 15 feet of lot 20, Myers Ward, and is not a predecessor in title of this defendant. The only person who may complain as to the alleged violation of any covenant in the event such person is dissatisfied, is a predecessor of this defendant in title to lot 19 and the eastern 15 feet of lot 20, Myers Ward.'

It is a general rule of construction as applied to a pleading that when considered on a general demurrer or motion to strike, it is to be construed most strongly against the pleader; and the rule applies to an answer as well as a petition. Krueger v. MacDougald, 148 Ga. 429(1), 96 S.E. 867. Thus construed, the averments here...