Stanley v. Greenfield

Decision Date11 October 1950
Docket NumberNos. 17203,17208,s. 17203
Citation61 S.E.2d 818,21 A.L.R.2d 1256,207 Ga. 390
Parties, 21 A.L.R.2d 1256 STANLEY v. GREENFIELD et al. GREENFIELD et al. v. STANLEY.
CourtGeorgia Supreme Court

Geo. Starr Peck, Atlanta, for plaintiff in error.

John L. Westmoreland, John L. Westmoreland Jr., and J. Ralph McCelland, J., all of Atlanta, for defendants in error.

Syllabus Opinion by the Court.

CANDLER, Justice.

1. Where restictive covenants in a deed exist as a part of a general scheme of development of a subdivision, one lot owner may enforce the covenant in equity against another lot owner who purchased with notice, and each owner will be chargeable with notice whether the covenant was contained in his immediate deed or not, provided it was contained in the deed from the common grantor; and such covenants are to be construed to carry into effect the intention of the parties, which is to be collected from the whole instrument and the circumstances surrounding its execution. Dooley v. Savannah Bank & Trust Co., 199 Ga. 353(2a), 34 S.E.2d 522(3, 4).

2. In the instant case, the recorded deed, among its descriptive terms, refers to a plat of record, upon which there is a dotted building line 60 feet from the street, but the deed sets out several restrictive covenants in specific language, including the following: 'No residence shall be erected or placed on any lot nearer than 10 feet from any side line, or nearer than 80 feet from the property line as shown by plat.' The plaintiff in error contends that, under a proper construction of the deed, the restricted building line is 60 feet from the street, rather than 80 feet, because the two clauses in the deed are utterly inconsistent, entitling the former to prevail. The Code, § 29-109, declares: 'If two clauses in a deed are utterly inconsistent, the former shall prevail; but the intention of the parties, from the whole instrument, should, if possible, be ascertained and carried into effect.' There is a trend in modern authorities toward the restriction of the first portion of the rule quoted next above, as against the latter portion thereof, which includes the cardinal rule of construction. Thompson v. Hill, 137 Ga. 308, 310(1), 73 S.E. 640. In the construction of contracts there is a rule that a written portion prevails over a printed portion, where the two cannot be reconciled. Shackelford v. Fitzgerald, 151 Ga. 35, 105 S.E. 597; Surles v. Milikin, 97 Ga. 485, 25 S.E. 322. Such a rule is in aid of the cardinal rule to ascertain the intention of the parties. By analogy and parity of reasoning, a mere general reference in a deed to a plat which may logically serve as an identification of the property by lot and block numbers must yield to specific provisions written in a deed in words and figures dealing particularly with the subject of buildingline restrictions, although the plat shows a dotted building line across lots in the subdivision in a number of feet different from that expressed in the deed. See Jones v. Lanier Development Company, 190 Ga. 887, 888(4a), 11 S.E.2d 11, 12. The words, 'a further consideration', as used in the case last cited do not indicate that an additional consideration was recited, paid, or necessary, and said case in principle is not inapplicable to the present question, as contended by the plaintiff in error, because there was not an additional expressed consideration in the deed here involved.

3. Another reason contended as requiring a reversal is that, under the pleadings and evidence, the plaintiffs were estopped; it being urged that in the petition an averment was made that 'the defendant had done a substantial amount of work on the construction of said building,' and that testimony of a witness for the plaintiffs and photographs identified by him, made shortly before the injunction suit was served on the defendant, show that substantial construction was already done, and there was testimony of the defendant that she had expended $8,000 or more on the house before the suit was served on her. It is true that in certain cases this court has held that a party with full knowledge of his rights who has been guilty of delay and laches in asserting them, and has negligently suffered large expenditures by another party on whom great injury would be inflicted, is not entitled to an injunction. Holt v. Parsons, 118 Ga. 895, 45 S.E. 690; Whipkey v. Turner, 206 Ga. 410, 57 S.E.2d 481. But whether or not estoppel is established depends upon the circumstances of the particular case (Whitney v. Union R. Co., 11 Gray, Mass. 359, 71 Am.Dec. 715; Stewart v. Finkelstone, 206 Mass. 28, 92 N.E. 37, 28 L.R.A.,N.S., 634, 138 Am.St.Rep. 370; and see annotation in 12 A.L.R.2d 398); and one of the necessary ingredients is that the person sought to be estopped shall have had actual or constructive notice. Sovereign Camp of The Woodmen of the World v. Heflin, 188 Ga. 234, 235, 3...

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12 cases
  • Estate of Sam Farkas, Inc. v. Clark
    • United States
    • Georgia Court of Appeals
    • May 14, 1999
    ...precedence over the printed portion of the contract only when the two are in conflict and cannot be reconciled. Stanley v. Greenfield, 207 Ga. 390(2), 61 S.E.2d 818 (1950); Patellis v. 100 Galleria Parkway Assoc., 214 Ga.App. 154, 155(2), 447 S.E.2d 113 (1994). There occurred no breach of c......
  • Barrows v. Jackson
    • United States
    • California Court of Appeals Court of Appeals
    • August 6, 1952
    ...92 Cal.App.2d 201, 206-207, 206 P.2d 898; Oliver v. Hewitt, 191 Va. 163, 60 S.E.2d 1, 2, 23 A.L.R.2d 516, Stanley v. Greenfield, 207 Ga. 390, 61 S.E.2d 818, 819, 21 A.L.R.2d 1256; Annotation 4 A.L.R.2d 1364, 1371.7 Annotation 14 A.L.R.2d 153.8 Civil Code, secs. 711, 715; Los Angeles Investm......
  • Williams v. Physicians and Surgeons Community Hosp., Inc.
    • United States
    • Georgia Supreme Court
    • June 30, 1982
    ...or typed, the written or typed portions are to be given greater weight in construing the parties' intent. Stanley v. Greenfield, 207 Ga. 390, 61 S.E.2d 818 (1950); Shackelford v. Fitzgerald, 151 Ga. 35, 39, 105 S.E. 597 (1920). See also McDaniel v. Georgia Consolidated Contracting Co., 110 ......
  • Parrish v. Newbury
    • United States
    • United States State Supreme Court — District of Kentucky
    • May 13, 1955
    ...Sec. 203; Vittitow v. Dodson, 302 Ky. 418, 194 S.W.2d 996; Cassell v. Reeves, Ky., 265 S.W.2d 801; Stanley v. Greenfield, 207 Ga. 390, 61 S.E.2d 818, 21 A.L.R.2d 1256. This cryptic endorsement on the plat was intended to mean something, and that something was at least to show the plan and p......
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