England v. Atkinson
| Decision Date | 11 June 1943 |
| Docket Number | 14535. |
| Citation | 26 S.E.2d 431,196 Ga. 181 |
| Parties | ENGLAND et al. v. ATKINSON et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. As a general rule, the owner of land in fee has the right to use it for any lawful purpose. Where neither the owner's deed nor any deed in his claim of title contains any restrictions but restrictions as to its use and alienation are sought to be placed thereon, based upon an extraneous agreement by his predecessor in title and by notice to the owner, the restrictions must be established by evidence that is clear and beyond a reasonable doubt.
(a) The evidence was not sufficient to authorize a jury to find that the purchaser received notice that the lot he purchased was restricted as to its use.
2. Where an equitable petition was filed, seeking an injunction and other relief against the defendant individually, and the plaintiff offered an amendment praying that defendant in the capacity of executor of the estate of another, not a party to the suit, be enjoined, it was proper to disallow such amendment.
About 1924 or 1925 the estate of J. A. Coursey sold various lots in what is known as the J. A. Coursey subdivision in Fulton County. Following the sale many of the lots were owned by a small group of people, to wit, W. A Jones, T. C. Shreve, Mrs. L. L. Shreve, H. G. Hubbard, and E L. Awtry. These parties owned lots individually, and also owned other lots jointly with one another; some being owned by Shreve and Jones, Shreve and Hubbard, Shreve and Mrs Shreve, and Shreve and Awtry. The proportion of all the lots in the subdivision owned by the above parties is not made definite. They did not own all the lots, but a substantial number.
The instant suit is brought by J. C. England and others, being parties who purchased lots from the above mentioned owners, and is brought against John L. Atkinson, Mrs. L. L. Shreve, W. A. Jones, H. G. Hubbard and E. L. Awtry. The suit is primarily directed against Mrs. L. L. Shreve, as grantor, and John L. Atkinson, as grantee, in a deed to one of the lots, praying for cancellation of the deed, and an injunction against Atkinson occupying the premises.
The suit is based upon the allegations that about 1924 or 1925 the owners of the lots mentioned in the first paragraph above had an agreement among themselves that they would restrict the sale and use of such lots as they owned to white people and no lot would be sold to a negro; and that, notwithstanding this agreement, one of the lots had, by Mrs. L. L. Shreve, been sold on September 26, 1941, without any restrictions, to John L. Atkinson, a negro, and that he was preparing to build a house thereon and occupy the same as a residence. The deed to Atkinson contained no restrictions, nor was there any restriction incorporated in any deed to his predecessors in title.
The plaintiffs sought to establish two things, (a) that Mrs. Shreve was bound by a contract, entered into by those named in the first paragraph above, not to deed any lot in this subdivision to a negro, and (b) that the defendant Atkinson bought the lot with knowledge that the lot was restricted against the sale to a negro.
The subdivision contained approximately seventy-five lots in various sizes from 50 to 75 feet front by 150 to 200 feet in depth, and also contained five tracts each containing about 3 or 4 acres. There was no evidence as to the number of the lots restricted or the number of those unrestricted. There was evidence that at the time of the sale of the lot to Atkinson, two other negroes had purchased lots, erected dwellings, and resided thereon.
Purchasers of lots after 1924 or 1925 testified they bought lots on the strength of representations, made by T. C. Shreve and his wife Mrs. L. L. Shreve, that the lots were so restricted. Others who were alleged to be parties to the agreement to restrict the sale of the lots, testified that after 1924 or 1925 all lots sold by them were restricted and purchasers were so advised. Deeds to lots executed after 1924 or 1925 by T. C. Shreve and Mrs. L. L. Shreve were introduced and all of which, except the deed to Akinson, incorporated the clause restricting the sale of the lot to a negro.
The petition alleged, and it was admitted, that the deed from Mrs. Shreve to Atkinson was executed on September 26, 1941. The evidence showed that at the time of the alleged contract in 1924 or 1925 to restrict the sale of the lots this particular lot was owned jointly by T. C. Shreve, and his wife Mrs. L. L. Shreve, and that Mr. Shreve died prior to the execution of the deed from Mrs. Shreve to Atkinson. The record does not disclose in what way, if any, Mrs. Shreve acquired the title to Mr. Shreve's interest in the lot, whether by deed, by will, inheritance, or in any other manner.
In seeking to establish the agreement between those named in the first paragraph above to restrict the sale and use of the lots, plaintiff sought to do so by proving an oral or parol contract between the parties, and as to this the court held: 'The ruling is that this witness cannot go into an agreement he had with the other parties, an oral agreement concerning restrictions on the land.'
The plaintiff introduced evidence for the purpose of establishing the fact that at the time Akinson purchased this property he did so with full knowledge that the property he purchased had been restricted against the sale to a negro. This evidence will be given in detail in the court's opinion to follow.
During the trial the plaintiffs offered an amendment to the prayer of the petition as follows: 'Plaintiffs pray that defendant, Mrs. L. L. Shreve be permanently enjoined from selling any property owned by her, whether individually or as executrix of the estate of T. C. Shreve, deceased, or as sole heir of said T. C. Shreve, in the J. A. Coursey subdivision as shown by the plat recorded in plat book 8, page 93, Fulton County records, to any negro or any person of negro blood.' Upon objection, this amendment was not allowed.
At the close of the evidence, upon motion of defendants, the court passed an order granting a nonsuit, and to this order the plaintiffs excepted.
Brandon, Matthews, Smith & Nall, of Atlanta, for plaintiffs in error.
Tye Thomson, Tye & Edmondson and Mitchell & Mitchell, all of Atlanta, for defendants in error.
ATKINSON, Justice (after stating the foregoing facts).
1. Whether or not the trial court erred in not admitting parol testimony to establish a contract to restrict the sale of lots to negroes, or whether there had been such part performance of this contract on the part of the plaintiffs as would render it a fraud if the court did not compel performance, or whether the court erred in excluding certain evidence, need not here be determined. We are of the opinion that inasmuch as neither the deed to Atkinson, nor the deed of any predecessor in the title, contained any restrictions as to its sale or use, the evidence introduced seeking to establish that he had notice of such restriction is insufficient in law so to do.
Randall v. Atlanta Advertising Service, 159 Ga. 217, 125 S.E. 462, 463.
Atlanta Ass'n of Baptist Churches v. Cowan, 183 Ga. 187, 188 S.E. 21, 22.
"As a general rule owners of the fee in land have the right to use their property for apartments and stores, if they so desire; and any claim that they are restricted * * *...
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