Atkinson v. England , 194 Ga. 854 ( 1942 )

Under the evidence the judge did not err in granting interlocutory injunction.

No. 14151. NOVEMBER 12, 1942. J. C. England and other owners of lots in a subdivision originally known as the Coursey subdivision, but forming a part of the community of Grove Park, filed their petition for injunction and other equitable relief, primarily against L. L. Shreve and John L. Atkinson, although certain others were named as defendants for purposes not here important. The plaintiffs alleged, that they owned and resided on certain lots in the subdivision above mentioned, holding them under purchase and conveyance by various deeds from E. L. Awtry, W. A. Jones, H. G. Hubbard, Mrs. L. L. Shreve, and T. C. Shreve; that these named persons "placed this subdivision upon the market, sold lots in this subdivision, and as an inducement to purchaser to buy said lots adopted a scheme of restrictions for said subdivision, and sold many lots . . subject to the scheme of restrictions which the said parties adopted and established for the lots in this subdivision, and plaintiffs herein purchased their lots upon the inducement that the entire subdivision was subject to the restrictions placed in plaintiffs' deeds, and part of the consideration for purchasing plaintiffs' lots was the fact that the subdivision was restricted in its entirety;" that one of the restrictions placed upon the property and relied upon by the plaintiffs was that the purchaser would not "sell, convey, lease, or donate said lots to a negro, a person of any degree of negro blood;" that this was a covenant running with the land; that it was provided in their deeds that it should "be kept by the parties of the second part, his heirs and assigns forever;" that on September 26, 1941, Mrs. L. L. Shreve, one of the parties who had adopted the scheme of restrictions as to the property involved, conveyed to the defendant John L. Atkinson, a negro, a tract of land located within the subdivision, in violation of the restrictions; that Atkinson was then constructing a house upon the property, planning to occupy the same as a residence, in violation of the restrictive covenants relied upon; that Atkinson was not a bona fide purchaser without notice, "in that he had notice that the property which he had contracted to purchase was a part of the Coursey subdivision, and that said subdivision was restricted to white residential property;" and that he received this notice before he paid the purchase-price for the property conveyed to him and before he began the construction of the house.

Atkinson answered, denying the claims of the petitioners and specifically averring that no general plan of restrictions had been adopted, and that he had no notice of such. A restraining order was entered, and on interlocutory hearing substantially the following state of facts was developed by the sworn pleadings, documents, and affidavits introduced. The land involved was owned by the Coursey estate, and before establishing a subdivision the heirs of J. A. Coursey, deceased, had a plat made of the property and had it recorded. They did not undertake to place any restrictions as to the use or alienation of the property, but, after reserving a portion of it for their own use, sold all the remaining lots to Mr. and Mrs. Shreve, W. A. Jones, E. L. Awtry, and H. G. Hubbard; "T. C. Shreve and W. A. Jones purchasing some of the lots jointly, T. C. Shreve and E. L. Awtry purchasing some of the lots jointly, and T. C. Shreve and Lena L. Shreve purchasing some of the lots jointly," these sales being made without regard to restrictions as to their use or alienation.

W. A. Jones, a witness for the plaintiffs, testified: "Deponent further says that when this property was purchased the purchasers named above (including Mrs. Shreve) agreed to adopt a scheme of restrictions for the entire subdivision, which restrictions are set out in the petition filed by the plaintiffs. . . Deponent says that to carry out this scheme of restrictions on the entire subdivision of the J. A. Coursey property, that deponent at the instance of the other parties prepared printed forms of deeds in which deeds there was printed the restrictions referred to in said suit, and that it was agreed that all of the lots sold would be sold subject to this restriction. Deponent further says, that he drew most of the deeds to the various lots in this subdivision, and he included the restrictions in most of them; that there were a few of the lots sold which did not include the restrictions in the deed, and it was due to the fact that the printed form of deeds was not at hand, but it was understood and represented to all of the purchasers that the property was subject to said restrictions." It developed that at various times the different owners, among those mentioned above, of the separate lots had, as shown by the affidavit of Jones, in making sales of the property sometimes conveyed with the restrictions and sometimes without them. Mrs. Shreve, the grantor of Atkinson, had conveyed some lots with restrictions and some without; and a witness testified that in discussing a purchase Mrs. Shreve had stated that the subdivision was so restricted. There was proof that Atkinson had notice of the claimed restrictions before paying the purchase-price and before the construction of the house. Some purchase-money had been by him paid at the time of the hearing; but after notice of the claimed restrictions, the remaining purchase-money was represented by notes of his, which it was stipulated had not been transferred by Mrs. Shreve. On the trial Atkinson relied upon his sworn pleadings, considered as evidence, together with a map showing the number of lots which had been conveyed without restrictions and those as to which the deeds contained the restrictions as a covenant. He also introduced a written agreement executed in November, 1940, and recorded on Fulton County records on March 11, 1941. The agreement purported to have been executed by all the plaintiffs and seventy-three other persons, owners of property in Grove Park, in land lots 143, 146, and 175 of the 14th district of Fulton County. The agreement had for its object, as stated, "to restrict property hereinafter described [including that here involved], so as to preserve the character of same as residential property of the Caucasian race." It contained a recital that "Whereas said described property has hitherto been without restrictions as to the use thereof, except those restrictions imposed thereon by the zoning laws of Fulton county." It was based upon the consideration of the mutual promises of the parties; and among other restrictions sought to be established was one as follows: "Said property hereinafter described shall be restricted for a period of forty years, commencing November 1, 1940, and ending November 1, 1980, to use as residential property for members of the Caucasian race; provided, however, that this agreement shall not interfere with the present use of any of said described property for commercial or other lawful purposes, the restrictions imposed herein applying to only future enterprise and future development of said property." Mrs. Shreve was not a party to this contract, nor of course was Atkinson, nor were Jones, Hubbard, and Awtry; nor was it contended that Atkinson had any notice of this agreement before the filing of the suit.

On this statement of facts the judge continued the restraining order and granted interlocutory injunction, to which ruling Atkinson excepted. 1. It may be stated at the outset that the character of the restriction to be dealt with is not here involved. The correctness of the judge's ruling in granting the injunction turns upon whether there was in fact a restriction by the grantor and whether the grantee, Atkinson, had notice of it. The efforts by the joint owners by their covenant in writing to establish a restriction is not important, except for a recital in it which has been quoted and will later be mentioned. This is true because Atkinson's grantor was not a party to it. She undertook to convey to him a fee-simple title without the burden of any restriction, and there was nothing in any muniment of his title which gave him either actual or constructive notice of any restrictions.

"It can not be denied that a general building scheme in a subdivision for the purpose of selling lots under restrictions is binding and enforceable, though not embraced in the deeds.Phillips v. Ingram, 163 Ga. 580, 586 (136 S.E. 785)."Jones v. Lanier Development Co., 188 Ga. 141 (2), 147 (2 S.E.2d 923). In Phillips v. Ingram, supra, the court said: "We are of the opinion that the court did not err in admitting the evidence objected to. The petition alleged that at the time of the subdivision of the property the Cobbs Land Co., in order to sell lots therein to better advantage and for better prices, placed certain restrictions on all of the property, as set out in the petition, and intended to, and did, establish, with reference to said property, a general building scheme and development plan, and thereby induced plaintiffs and many others to purchase lots in said subdivision. See Hancock v. Gumm, 151 Ga. 667 (107 S.E. 872, 16 A.L.R. 1003); Rosen v. Wolff, 152 Ga. 578 (110 S.E. 877). It has been held that restrictions under a general plan adopted by the owner to sell lots may in equity be imposed on the lands, beyond the express restrictions contained in the deeds to the purchaser, on the theory of implied covenants; and that in a proper case equity will enforce against the covenantor's grantee a personal covenant imposing restrictions on the use of land contained in the grant thereof. 15 C. J. 1218, § 14. The following general statement of this principle is found in the annotation to the case of Jennings v. Baroff, 104 N.J. Eq. 132 (144 A. 717, 60 A.L.R. 1219-1231): "Where a general scheme of development exists, the grantees of lots subject thereto may enforce the restrictions against each other, although such restrictions are not embraced in the defendant's conveyance, where the owner sought to be subjected to the restrictions purchased with notice thereof. Enderle v. Levine Bros., 102 N.J. Eq. 569 (141 A. 758); Rose v. Jasima Realty Corporation, 318 App. Div. 646 (219 N.Y. Supp. 222); Bailey v. Jackson-Campbell Co. (1926), 191 N.C. 61,131 S.E. 567; West v. Hughes (1925), 58 Ont. L. Rep. 183 (1926), 1 D. L. R. 359. See Hill v. Trigg (1926) (Tex.Civ.App.),272 S.W. 237 (reversed in 1926, (Tex.), 286 S.W. 182), and also cases set forth above." See also Jones v. Lanier Development Co.,190 Ga. 887 (11 S.E.2d 11). The foregoing principles would unquestionably apply in the instant case if the alleged restrictions had been established by an owner who was a common grantor, or if they had appeared either in the conveyance held by the grantee or some conveyance in his chain of title. Other questions may ultimately appear on the final trial of the case, arising from the fact that the only claim of participation in any restrictive covenant, by Mrs. Shreve, Atkinson's grantor, rests now on the affidavit that she as one of the purchasers from the Coursey estate (orally) agreed to keep the claimed restrictions. Whether, if otherwise valid, such a covenant of restrictions between joint owners of separate parcels of property is required to be in writing, under the Code, §§ 29-101, 20-401, or whether in such circumstances some other manifestation of the agreement would be sufficient (see Meadows v. Page, 187 Ga. 686,1 S.E.2d 656), in the instant case the judge was authorized to find that such original oral agreement had in fact been established, and that Atkinson was notified of it before paying the purchase-price or constructing his house on the property.Gleaton v. Wright, 149 Ga. 220 (100 S.E. 72); Donalson v. Thomason, 137 Ga. 848 (74 S.E. 762). There was no objection to testimony as to the making of this agreement, upon the ground that it was required to be in writing; nor was that point made in any way at any time of the trial, by pleadings or otherwise.

It is contended, however, that the recital in the later agreement, which was signed by the plaintiffs, to the effect that use of the property had not been hitherto restricted, estopped them from now relying upon the previous restrictions represented in the original agreement. As we view this recital, it is not sufficient to estop the plaintiffs from making their present contention. It does not appear that Atkinson knew of the recital or agreement or acted upon it; in addition to this, the recital in making reference to prior restrictions referred only "to the use thereof;" and since the restrictions imposed in the writing differed somewhat in character from that which had been set up in the original agreement and also embraced a larger area of land, it could not be conclusively determined that the prior agreement was wholly disclaimed. This recital might be quite pertinent upon the final trial of the issues, where the fact of the prior agreement will be in issue; but we do not see in it an absolute estoppel.

Upon the consideration of the granting of a temporary injunction, the judge is not required to resolve all of the fine points or nice distinctions in a case; and while we do not overlook the rule, in cases which seek to impose or enforce restrictions on the use or alienation of property, that a preponderance of the evidence is not sufficient, but must be proved beyond a reasonable doubt (Kitchens v. Noland,172 Ga. 684, 158 S.E. 562; Randall v. Atlanta AdvertisingService, 159 Ga. 217, 218, 125 S.E. 462; Atlanta Associationof Baptist Churches v. Cowan, 183 Ga. 187, 188 S.E. 21;Jones v. Lanier Development Co., 190 Ga. 887, 889 (3), 890, supra), nevertheless this rule is to be applied upon the final disposition of a case before a jury.

In Jones v. Lanier Development Co. supra, this court said: "The grant or denial of a temporary injunction rests in the sound discretion of the judge, according to the circumstances of each case (Code, § 55-108); and where the evidence is conflicting, his decision will not be reversed, unless it is apparent that he has abused the discretion which the law gives him. Sapp v. Ritch,169 Ga. 33 (3) (149 S.E. 636); Gilstrap v. Palmour HardwareCo., 170 Ga. 27 (152 S.E. 53); Murrell v. North LondonFine Art Co., 173 Ga. 224 (160 S.E. 343); Holland Pecan Co. v. Brown, 177 Ga. 525 (170 S.E. 357); Traylor v. Peoples Bank ofCarrollton, 179 Ga. 895 (3) (177 S.E. 702). But, in determining whether or not there has been an abuse of discretion, the convenience of the parties can not be ignored. In Everett v. Tabor, 119 Ga. 128 (4, 5) (46 S.E. 72), it was said: `There should be a balance of conveniences in such cases, and a consideration whether greater harm might be done by refusing than by granting the injunction. . . Where the evidence is conflicting, and it appears that the injunction if granted would not operate oppressively to the defendant, but that if denied the complainant would be practically remediless in case he should thereafter establish the truth of his contentions, it would be strong reason why the chancellor should exercise his discretion so as to preserve rights by preserving the status.' Furthermore, a conflict in evidence upon the hearing, which would authorize the judge to either grant or deny the injunction, must be a conflict in the evidence on material issues in the case. Where the plaintiff shows grounds for the grant of an injunction and shows that unless injunction is granted he will suffer irreparable injury, and there is conflict in some immaterial issues made in the case, it is error to refuse an interlocutory injunction to restrain the defendant. Robinson v. Bryant,181 Ga. 722 (184 S.E. 298)." The principle stated in Everett v.Tabor, supra, with reference to the balance of conveniences may well be applied in the case before us. By preserving the status, which the trial court has done, opportunity is given for a more careful investigation to be had at the trial, and for the jury to determine the issue of fact before the position of the parties has been changed and irreparable injury is effected. So, considering the evidence in the present record, we conclude that the judge did not err in granting the interlocutory injunction.

Judgment affirmed. All the Justices concur, except Hewlett,J., disqualified.