Hancock v. Gumm
| Decision Date | 18 June 1921 |
| Docket Number | 2333. |
| Citation | 107 S.E. 872,151 Ga. 667 |
| Parties | HANCOCK ET AL. v. GUMM ET AL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The burden of a restrictive agreement does not pass to the assignee, where such assignee is a purchaser of the land for value and without notice, actual or constructive, of the agreement.
If one with notice sell to one without notice, the latter is protected; or if one without notice sell to one with notice the latter is protected, as otherwise a bona fide purchaser might be deprived of selling his property for full value.
A purchaser of land is conclusively charged with notice of a restrictive agreement or covenant contained in a deed which constitutes one of the muniments of his own title; and generally this is true, whether the deed containing such covenant is recorded or not.
(a) In view of the provisions of Civ. Code 1910, § 3320, a deed which constitutes one of the muniments of a purchaser's title is a deed to the same land, and not a deed from his grantor to other land; and this is true, even though the prior deed of his grantor conveys a lot or parcel of the same general tract.
Additional Syllabus by Editorial Staff.
Where a bond for title to a lot described it as lot No. 5 of the K plat, if the purchaser was bound to call for the K. plat, and was charged with notice of a general scheme of development by reason of a building line shown on such plat, it nevertheless cannot be assumed that a plat by K., dated subsequent to the bond for title, and showing such building line, is an exact duplicate of the plat referred to in the bond for title.
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Suit by Mrs. J. A. Gumm and others against B. D. Hancock and others. A temporary injunction was granted, and defendants bring error. Reversed.
Prior to and on November 6, 1908, the Atlanta Banking & Savings Company (for convenience hereinafter referred to as the banking company) owned a tract of land in the city of Atlanta, fronting 810 feet on Ponce de Leon avenue and extending south from said avenue 500 feet, more or less, to Blue Ridge avenue. The tract of land was at the time bounded on the east by Panola street, now Linwood avenue. The banking company offered the frontage on Ponce de Leon avenue for sale. Mrs. C. Helen Plane, through her son, W. F. Plane entered into negotiations with the banking company for the purchase of a portion of the property fronting on Ponce de Leon avenue. An officer of the banking company stated to W. F. Plane that it was proposed to sell the Ponce de Leon avenue frontage in lots of 100 feet in width, and running south 220 feet to an alley. The agent of the banking company agreed with the agent of Mrs. Plane that, as a part of a scheme for developing the property a building line on Ponce de Leon avenue should be established, said line to be 40 feet from said avenue. On November 6, 1908, the banking company and Mrs. Plane entered into the following contract:
On November 19, 1908, the banking company issued its bond for title to Mrs. Plane, binding it to convey to her the property described in the contract, and containing the following covenant:
This bond for title was duly recorded in the clerk's office of Fulton superior court on November 27, 1908. On April 1, 1909, the banking company executed and delivered to Mrs. Plane its warranty deed to the property as described in the bond for title, said deed containing the restrictive covenant or agreement inserted in the bond for title quoted above. This deed was duly filed for record on April 3, 1909. After the execution of its bond for title to Mrs. Plane, the banking company had the property fronting on Ponce de Leon avenue platted into eight lots, lot 1 fronting 90 feet on said avenue, lots 2, 3, 4, 5, 6, and 7 fronting 100 feet on the avenue, and lot 8, the lot sold to Mrs. Plane, fronting 120 feet on Ponce de Leon avenue. On December 16, 1908, the banking company issued its bond for title to W. R. Jester to lots 3 and 4 of the subdivision, as shown by the plat of same of "C. E. Kauffman, C. E." This bond for title, which was duly recorded on November 28, 1908, contained the following covenant:
"This lot is sold upon the express consideration that no building, or part thereof, shall be built upon same at a less distance than forty (40) feet from Ponce de Leon avenue, nor shall the house thereon cost less than the sum of $4,000."
On February 27, 1909, the banking company issued its bond for title to Mrs. Margaret A. Farland, to "lot No. 5 of the O. F. Kauffman plat." This bond for title was transferred, and a deed was made by the banking company to Mrs. Farland's assignee on May 26, 1911, conveying the property as described in the bond for title. Neither the bond for title issued by the company to Mrs. Farland nor the deed executed and delivered by the banking company to Mrs. Farland's assignee contained any restrictive covenant or agreement. On April 21, 1920, Buford Hancock, the real plaintiff in error in this case, became the owner of lot 5, which was originally conveyed by the banking company to Mrs. Farland on the date and as aforesaid. The deed to Hancock contained no restrictive agreement. On November 12, 1909, subsequently to the date of the bond for title to Mrs. Farland, the banking company conveyed by warranty deed to W. L. Peel "lot No. 2 of the plat of O. F. Kauffman & Bro." This deed, which was duly recorded on November 17, 1909, contained the same restrictive covenant as appeared in the Jester bond for title. On May 30, 1911, the banking company conveyed by warranty deed to George W. Brine a lot adjoining the lot of Mrs. Plane. This deed did not give the number of the lot, and did not refer to the Kauffman plat, but did contain a restrictive covenant similar to or identical with the covenant in the Jester bond for title. Subsequently to the date of the bond for title from the banking company to Mrs. Margaret A. Farland, the banking company, by separate deeds, conveyed lots 1 and 6. No restrictive covenant was inserted in either of these deeds. Lots 2, 3, 4, 7, and 8, which were sold with restrictive covenants against the erection of buildings nearer than 40 feet to Ponce de Leon avenue, were conveyed, by mesne conveyances, to the present owners, and in these conveyances the same restrictive covenants and the same references to the plat were made as contained in the respective original conveyances from the banking company.
On June 5, 1909 (subsequently to the date of the bond for title from the banking company to Mrs. Farland), there was recorded in the office of the clerk of the superior court of Fulton county, a plat of the property of the banking company on Ponce de Leon avenue, showing exactly the location dimensions, and numbers of the lots described in the deeds above referred to, and across said plat was a line parallel with Ponce de Leon avenue indicating a distance of 40 feet from said avenue, and marked "Building Limit." Prior to the purchase of lot 5 by Buford D. Hancock, all the lots in said tract fronting on Ponce de Leon avenue had been built upon, except lot 5. As soon as Buford D. Hancock became the owner of lot 5, he began the erection of a three-story apartment house thereon. Excavations were first made for the walls of the building, commencing at or near the building line and extending toward the rear of the lot. Later, when the building had been partially completed, the contractor and foreman in charge began excavating between the building line and Ponce de Leon avenue. Buford D. Hancock announced his intention to build the apartment house within 10 or 15 feet of Ponce de Leon avenue, and when this fact became known to Mrs. J. A. Gumm, J. H. Bennett, F. A. Quillian, and E. J. Perkerson they filed an equitable petition in Fulton superior court, alleging that they were the then owners of portions of the property formerly belonging to the banking company and included in the Kauffman plat; that they had improved their respective lots by building suitable residences thereon, and had conformed to the building line contained in the covenants in their deeds made by the banking company, and as shown on the Kauffman plat; and that all owners of any part of said property fronting on Ponce de Leon avenue had erected their buildings in conformity with said building line. They further alleged that the banking company, before selling any of said property, platted said tracts...
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Ensuring Proper Notice: Clearing the Fog Surrounding Virtual Patent Marking
...are still illustrative of a common view of what constitutes adequate notice. [145]See WOLF, supra note 144, at § 82.01; Hancock v. Gumm, 107 S.E. 872, 877 (Ga. 1921) ("[W]here a recorded deed to a lot forming part of a larger tract contains restrictive covenants, which by the terms of the d......