Mu Chapter Bldg. Fund v. Henry

• Decision Date: 17 February 1949
• Docket Number: 16476.
• Citation: 51 S.E.2d 841,204 Ga. 846
• Parties: MU CHAPTER BLDG. FUND, Inc. v. HENRY.
• Court: Georgia Supreme Court

51 S.E.2d 841

204 Ga. 846

MU CHAPTER BLDG. FUND, Inc. v. HENRY.

No. 16476.

Supreme Court of Georgia

February 17, 1949

Syllabus by the Court.

A covenant in a deed, that the land thereby conveyed 'shall not be used otherwise than for residence purposes, and shall not be used for a sanatorium, hospital or infirmary, and no apartment is to be erected thereon,' would be violated by the maintenance and operation of a college fraternity house as a gathering place for its members wherein the members hold fraternity meetings, stage initiations into the fraternity hold dances, rush parties, and other forms of entertainment and where there is located on the first floor a store room numerous radios, a soft-drink vending machine, and where other items of merchandise are offered for sale to those present in the house from time to time, and where there has been erected in front of the house a large neon sign, and the lights inside the house and the neon sign are kept burning at all hours of the night while the occupants engage in dancing and other activities.

N. B. Henry filed his petition in the superior court of Fulton County, Georgia, alleging: that the defendant, Mu Chapter Building Fund, Inc., was a corporation duly chartered by the superior court of Fulton County, and subject to the jurisdiction of that court; that the plaintiff had on July 8 1925, purchased and was still the holder of the fee-simple title to a described tract of land in DeKalb County, Georgia, and being improved property known as No. 1354 Emory Road, N.E. , and that such property was occupied by the plaintiff and his family; that on May 10, 1948, the defendant purchased or agreed to purchase a described tract of land in DeKalb County, Georgia, being improved property known as No. 1351 Empory Road, and that such improved property purchased or agreed to be purchased by the defendant 'is now occupied and used by the Tau Epsilon Phi Fraternity;' that the lot owned by the plaintiff and lot purchased by the defendant are located in the subdivision known as Druid Hills, Emory Section; that the lot owned by the plaintiff and lot purchased by the defendant were sold and conveyed subject to certain restrictions which, it was alleged, were binding upon the defendant and the plaintiff for a period extending to January 1, 1950, among which alleged restrictions was the following: '1. Said land shall not be used otherwise than for residence purposes, and shall not be used for a sanatorium, hospital, or infirmary, and no apartment is to be erected thereon.'

The plaintiff further alleged: That the right was expressly reserved by the owner of any lot in the subdivision to proceed by law or in equity to compel the compliance with the restrictive covenants which he contended were affixed to and ran with the lots in said subdivision; and that the plaintiff purchased his own property in said subdivision relying upon the restrictive covenants and his right to enforce the same under the following provision contained in the deeds conveying the said lots: 'Said lot is sold with the foregoing restrictions, which are conditions of the sale, affixed to and running with the land, and for a violation of the terms thereof or any of them, by the said Albert H. Bailey or any person holding or claiming by, under or through him, the right is expressly reserved to the said Druid Hills and its successors and assigns, or the owner of any lot in said subdivision to proceed by law or in equity to compel the compliance with the terms hereof. The failure to promptly enforce these restrictions and conditions shall at no time bar their enforcement, but in spite of any and all delays the said Druid Hills, its successors and assigns, may at any time enforce each and all of these restrictions and provisions,'

That the lot owned by the defendant was being occupied and used by the Tau Epsilon Phi Fraternity for 'what is commonly termed a fraternity house;' that in so using said property, the fraternity was 'holding or will hold fraternity meetings therein, is staging or will stage initiations into said fraternity, and is holding or will hold dances, rush parties and other forms of entertainment in said house;' that the occupants of the defendant's property had located on the first floor a store room, numerous radios, and a soft-drink vending machine, and were offering for sale other items of merchandise to those who may be present in said house; that there had been erected in front of the defendant's property a large neon sign; and that the lights inside the house and the lights on said neon sign were kept burning through all hours of the night while the occupants of the house engaged in dancing and other activities.

The plaintiff further alleged that such uses of the defendant's property were in direct violation of the restrictive covenant contained in the deed thereto; and that, unless the defendant was enjoined and restrained from so using its property, the plaintiff and other lot owners in said subdivision will suffer irreparable injury and damge, and the value of their property will greatly depreciate; and that he had no adequate remedy at law.

The plaintiff prayed that a rule nisi issue requiring the defendant to show cause why it should not be temporarily enjoined from violating the alleged restrictive covenant, and that at a final hearing the defendant be permanently enjoined from using said property in violation of the restrictive covenant set forth in the petition, and for process.

The defendant filed timely general and special demurrers and also an...