Hamm v. Wilson , 168 Ga. 670 ( 1929 )

Gilbert, J.

The exception in this case is to a judgment denying an interlocutory injunction. The case was submitted on the pleadings. The prayer in the petition was: “That defendant be restrained and enjoined from continuing to occupy and use the building on said property for a residence for more than one family.” The petition showed that the defendant was the owner of a described building lot on which a residence building had been erected. Defendant’s deed to the land contained the following restrictions, among others not material: “1. Said lot shall be used only for residential purposes and no business house or structure other than a residence and its necessary outbuildings shall be located thereon. 2. The said lot shall not be subdivided and only one residence shall be erected on each lot.” The petition alleged that two families were occupying said building; that petitioner was owner of a nearby lot in the same subdivision and had an interest in the ‘ restrictions. There was a demurrer, which was not expressly passed upon. The answer admitted the allegations as to the ownership of the respective lots as alleged, and that there was a residence building on defendant’s lot; but denied that he had violated the building restrictions. The defendant further answered that there was a single residence with two entrances occupied by two families; that the building was on the lot when defendant purchased it; that it was already so erected and the same two families residing therein when petitioner purchased his lot; and that petitioner, when he purchased, “had full knowledge of its. use.” Held, that under the pleadings, considered by stipulation of the parties as evidence, the court was authorized to find that the defendant had not violated the restrictions as alleged; that defendant had not “erected” more than one residence, nor any building for business purposes; and that the building had been “erected” prior to the purchases of both plaintiff and defendant with full knowledge of the former. The court did not err in refusing an interlocutory injunction. Courtney v. Hunter, 159 Ga. 321 (125 S. E. 714).

Judgment affirmed.

All the Justices concur.