Smith v. Pindar Real Estate Co.

• Decision Date: 16 November 1938
• Docket Number: 12376.
• Citation: 200 S.E. 131,187 Ga. 229
• Parties: SMITH v. PINDAR REAL ESTATE CO.
• Court: Georgia Supreme Court

200 S.E. 131

187 Ga. 229

SMITH v. PINDAR REAL ESTATE CO.

No. 12376.

Supreme Court of Georgia

November 16, 1938

Rehearing Denied Nov. 25, 1938.

Error from Superior Court, Chatham County; R. N. Hardiman, Judge.

Suit by L. H. Smith against the Pindar Real Estate Company to enjoin the building of a dwelling house on a certain lot. To review an adverse judgment, plaintiff brings error.

Reversed.

Syllabus by the Court.

1. A restrictive covenant in a deed, that 'A building lot shall be a lot having a frontage of not less than sixty (60) feet, and purchasers are expressly restricted to the creation [erection] of not more than one residence upon a building lot,' definitely establishes sixty feet as the minimum width of a lot on which a residence may be erected.

2. The plaintiff in this case was not estopped, by the conduct of two of his remote grantors, from enforcing the restrictive covenant incorporated by reference in the deed by which the defendant acquired title to his lot.

3. The act approved March 28, 1935, which declares that 'covenants restricting lands to certain uses shall not run for more than twenty years in municipalities which have adopted zoning laws' (Ga.L.1935, p. 112), does not purport to have effect retrospectively; and the 'settled rule for the construction of statutes is not to give them a retrospective operation, unless the language so imperatively requires.'

4. The court erred in refusing an injunction.

L. H Smith filed a petition against Pindar Real Estate Company seeking to enjoin the building of a dwelling-house on a described lot in Ardsley Park, a subdivision of the City of Savannah. The basis of the claim to the relief sought was that the lot on which the defendant was proceeding to erect a dwelling-house had a frontage of only fifty-two feet; that the defendant acquired title to said lot by deed dated January 7, 1937, from J. Ralston Lattimore, which deed contained the following stipulation: 'This property is conveyed subject to the restrictions mentioned in that warranty deed from Ardsley Park Land Corporation to J Ralston Lattimore, which is recorded in book 15-N, folio 77, in the office of the clerk of the superior court of Chatham County, Georgia;' that the deed to Lattimore referred to in said stipulation contained, among others, the following covenant: 'It is expressly covenanted, however, that this conveyance is made subject to the following covenants and conditions which will run with the land, namely: * * * A building lot shall be a lot having a frontage of not less than sixty (60) feet, and purchasers are expressly restricted to the creation [erection?] of not more than one residence upon a building lot as hereinafter defined;' that the lot conveyed to the defendant by said deed of January 7, 1937, has a frontage of only fifty-two feet, and the construction of a dwelling-house thereon will be a violation of the restriction referred to and contained in defendant's deed, and will cause petitioner irreparable damage. The judge, at interlocutory hearing on the pleadings only, refused an injunction, and the plaintiff excepted.

The defendant filed a demurrer to the petition, a plea in bar, and an answer. The demurrer was general, except that the allegation in the petition that the plaintiff's damages would be irreparable was attacked as a conclusion of the pleader. The plea in bar was as follows: '1. Respondent shows that under the provisions of the act approved March 28, 1935 [Laws 1935, p. 112], codified as section 29-301 of the Code of Georgia of 1933, covenants running with the land shall not run for more than twenty years in municipalities which have adopted zoning ordinances; and that there being a zoning ordinance in the City of Savannah and the said covenants having run for more than twenty years, they are now void and of no effect. 2. Respondent further shows that by deed dated June 8, 1935, * * * J. Ralston Lattimore conveyed lots 184 and 185, McKenna Ward, to Harry Fulenwider; and that by deed dated February 27, 1937, * * * Harry Fulenwider conveyed the same to Margery Fulenwider Hitch; and that by deed dated September 24, 1937, * * * Margery Fulenwider Hitch conveyed the same property to the complainant; and that each of said deeds incorporated the restrictions contained in the deed from Ardsley Park Land Corporation to J. Ralston Lattimore, by reference. 3. Respondent further shows that on July 22, 1936, a petition of J. Ralston Lattimore, asking permission to erect a bungalow on lot 183, McKenna Ward, came before the regular meeting of the Mayor and Aldermen of the City of Savannah for action, and was acted on favorably by them; and that the said Harry Fulenwider was at that time and still is an alderman of the City of Savannah, and was personally present at the said meeting on July 22, when said action was taken on said petition. A copy of said petition is hereto attached, marked 'Exhibit A' and made a part hereof. 4. Respondent further shows that the said Harry Fulenwider was then the owner of lots 184 and 185, McKenna Ward, and that although he knew that Pindar Real Estate Company intended to purchase said lot [183] and build a bungalow upon it he failed to advise the respondent that he intended to invoke the said covenants to prevent said action, but acquiesced in the same, and that he is thereby estopped from invoking said covenant now; and the said Harry Fulenwider being a predecessor in title to the complainant, the said complainant is also estopped from invoking said covenant, by said conduct on the part of said Harry Fulenwider.' The answer denied that the erection of the building sought to be enjoined violated any restriction as alleged in the petition, and alleged 'that this bill was brought, not because of any rights of the complainant being infringed, but because complainant is desirous of compelling defendant to sell said lot 183 to him.'

It is alleged in the petition that J. Ralston Lattimore, by deed dated June 29, 1920, acquired title to lots 184 and 185 owned by plaintiff, and lot 183 owned by defendant, from Ardsley Park Land Corporation, this deed containing the restrictive covenant which has been quoted, and that said lots 184 and 185 are each thirty feet in width, and adjoin on the east lot 183, 52 feet in width. Attached to the petition is a map of the Ardsley Park Subdivision, dated July 13, 1910. It is also alleged 'That the property of petitioner, lots 184 and 185, McKenna Ward, and the property of the defendant, lot 183, McKenna Ward, are situate in a certain subdivision known as Ardsley Park. Said subdivision was laid out and subdivided in the year 1910. * * * Covenants identical to those covenants in the deed from Ardsley Park Land Corporation to J. Ralston Lattimore were contained in each and every deed from Ardsley Park Land Corporation to purchasers of property for the common benefit of all property owners in said subdivision.'

Hitch, Denmark & Lovett, of Savannah, for plaintiff in error.

A. Leopold Alexander, of Savannah, for defendant in error.

RUSSELL Chief Justice.

Counsel for the defendant in error contends: (1) That 'the exact language of the covenant in question nowhere states that one residence cannot be erected on less than a 'building lot' as defined in the restriction, but prohibits the erection of more than one residence on a building lot. Can it not, therefore, be said that the purpose of the restriction is to prevent the erection of two or more residences on a 'building lot,' rather than to prevent the erection of one residence on a smaller frontage than sixty feet?' (2) That the plaintiff in error is estopped from enforcing clause 4 of the restrictive covenant, because of the conduct of his predecessors in title, J. Ralston Lattimore and Harry Fulenwider. (3) That the restrictive covenants in the deed in question are rendered void by the act of 1935, which act added to § 29-301 of the Code the following proviso: 'Provided however that covenants restricting lands to certain uses shall not run for more than twenty years in municipalities which have adopted zoning laws.'

1. We do not think clause 4 of the restrictive covenant in the deed involved here susceptible of the construction sought to be placed thereon by counsel. This clause defines a building lot as 'a lot having a frontage of not less than' sixty feet, and then inhibits the building of more than one residence upon a 'building lot' as thus defined. It is clear and free from ambiguity and the authorities cited by counsel as to the construction and enforcement of restrictive covenants which are vague and uncertain are not applicable to the clause now under consideration. The cases of Randall v. Atlanta Advertising Service, 159 Ga. 217, 125 S.E. 462; Fauss v. McConnell, 172 Ga. 444, 157 S.E. 625; Kitchens v. Noland, 172 Ga. 684, 158 S.E. 562; Atlanta Association of Baptist Churches v. Cowan, 183 Ga. 187, 188 S.E. 21, cited by the defendant, do not...