Jordan v. Orr, 17849

• Citation: 209 Ga. 161,71 S.E.2d 206
• Decision Date: 09 June 1952
• Docket Number: No. 17849,17849
• Parties: JORDAN et al. v. ORR et al.
• Court: Georgia Supreme Court

Page 206

71 S.E.2d 206

209 Ga. 161

JORDAN et al. v. ORR et al.

No. 17849.

Supreme Court of Georgia.

June 9, 1952.

L. D. Burns, Jr., R. J. Reynolds, Jr., Atlanta, for plaintiffs in error.

Smith, Kilpatrick, Cody, Rogers & McClatchey, Welborn Cody, Atlanta, for defendants in error.

Syllabus Opinion by the Court.

HAWKINS, Justice.

C. V. Jordan, William Griffin, Alex Bealer, W. P. Hedgepeth, Charles Perkins, and E. M. Napier, Jr., brought an action, in Fulton Superior Court, against Roy H. Orr and Ruth J. Orr, to enforce restrictions in a deed and to recover expenses in connection therewith, as provided in the deed. It was alleged that petitioners each own a lot or lots in what is known as Collier Woods Subdivision, in which defendants own a house and lot; that all parties claim title from the same common grantor, the G. W. Collier Estate, a corporation, and that all deeds are subject to the same eleven restrictions, which were set out in the petition, only the following four being pertinent here: (1) 'Said property shall be used only for residential purposes with the understanding that no duplex or apartment house is to be erected thereon, and shall not be used for cemetery, hospital, sanitorium, or any business purposes'; (3) 'No use to be made of said property, or any part thereof, which would constitute a nuisance or injure the value of any of the neighboring lots'; (5) 'No residence shall be erected on said property to cost less than $7500 and not more than one residence shall be built on any lot, but any person may use more than one lot, placing one residence thereon'; and (11) 'In the event of a violation of any of the above restrictions, the grantor, its successors or assigns, or any lot owner in said subdivision, shall have the right to enforce a full compliance with same by legal proceedings at the expense of the owner violating or permitting said violation.' It was further alleged that, about March, 1951, defendants converted their home into a duplex by the installation of a second kitchen and other structural changes, and by renting out the newly created side of the duplex, occupying the other part as their own home; that petitioners have notified defendants that they are violating restrictions, how they are violating same, and that unless they comply with said restrictions they would take appropriate legal steps to protect their rights; but that, notwithstanding their notice, defendants continue to violate said restrictions. It was also alleged that a duplex constitutes a nuisance and injures and damages said subdivision as residential property, and further, that it decreases the value of petitioners' lots in said subdivision. On the trial, before a jury, certain allegations in the petition were stipulated as being true, and plaintiffs introduced witnesses and some documentary evidence. One of defendants, Roy H. Orr, was called as a witness by plaintiffs and cross-examined. Evidence in support of the allegations that, about March, 1951, defendants converted their home into a duplex, was to the effect that a basement room was made into a second kitchen, by putting in pine panel on one side of the stairs leading from main floor to basement, the installation of sink, refrigerator, and electric stove, though electric receptacle for the refrigerator was put in when the house was originally constructed, and the sink was connected to plumbing already there, since the original permit included half-sink to be installed in this room; and that three rooms and bath, including kitchen, have since been rented to named persons, constituting an occupancy of the house by two separate families. Thereafter plaintiffs closed, and defendants moved for a nonsuit, which was granted, and the exception is to this judgment. Held:

1. Counsel for the defendants in error in their brief say they 'do not now and never have contended that the restrictions did not prevent the construction of a duplex,' but they contend that the record 'fails to disclose the construction of a duplex on the lot in question.' Conceding, without deciding, that the house in question, as originally constructed, was not a 'duplex', would the conversion of a play-room, or utility room, in the basement, into a second kitchen, within itself constitute such a structural change as to make the house a 'duplex'? We think not. We know of no...