Opinion
18822.
SUBMITTED JANUARY 12, 1955.
DECIDED FEBRUARY 14, 1955.
Injunction. Before Judge Vaughn. DeKalb Superior Court. October 20, 1954.
J. T. Sisk, for plaintiff in error.
Grant, Wiggins, Grizzard Smith, contra.
Where limitations upon the use of property do not appear in the chain of title, a restriction based upon an independent act or agreement must be established by evidence that is clear and beyond a reasonable doubt.
SUBMITTED JANUARY 12, 1955 — DECIDED FEBRUARY 14, 1955.
A. Vernon McKee, Mattie Lou Turner McKee, R. H. Wiggins, and J. P. Haire brought an equitable petition against H. O. Hubert, Jr., and O. N. Sheppard, Jr. They alleged: They are owners of property in the W. C. House Subdivision. The defendant Hubert purchased property in the subdivision, and Hubert and Sheppard are proposing to subdivide the property purchased by Hubert. The proposed re-subdivision of the property is in violation of the restrictions placed on the original subdivision. The prayers were for temporary and permanent injunction, and other relief.
The plaintiffs relied upon a plat of the property dated May 10, 1945, which had attached to it certain restrictive covenants, signed by W. C. House on April 8, 1946, and approved by the county commissioner on April 9, 1946, and a similar plat dated April 28, 1945, with the same restrictive covenants on it. On the plat of April 28, 1945, there appear the names of purchasers of lots in the W. C. House Subdivision.
From the record it appears that W. C. House sold to L. D. Nalley, predecessor in title of the defendant Hubert, on May 17, 1945. The deed from House to Nalley did not contain any restrictive covenants, nor did it refer to a recorded plat, but referred to a plat, "a copy of which is on file in the office of Atlanta Title Company." The deed from L. D. Nalley to the defendant H. O. Hubert does not contain any restrictions, nor does it refer to any recorded plat of the property, but it simply states that the description is "according to plat thereof made by Gordon Nalley, engineer, dated April 28, 1945."
It was stipulated by counsel for the parties that W. C. House sold all of the lots in the subdivision during the year 1945, and that in the year 1946 he owned no property in the subdivision. This stipulation was supported by the testimony of O. N. Langford, for the plaintiffs, to the effect that Langford was acting for Adair Realty Company, which had charge of the subdivision, that they ran one advertisement, and that he sold all of the property on one afternoon, the date of the sale being in May, 1945.
Gordon Nalley, Jr., a witness for the plaintiffs, testified that he worked in the office of his father, Gordon Nalley, Sr., who had died shortly before the trial. According to the uncontradicted testimony of this witness, the restrictions relied upon by the plaintiffs, appearing on the plat and signed by W. C. House on April 8, 1946, were printed on the plat by the witness some time after January 1, 1946, and prior to April 8, 1946, and the witness was certain of this date since he was discharged from the Air Force in December, 1945.
R. H. Wiggins, one of the plaintiffs, testified that, at the time he purchased his lot in 1945, "we just signed my name on a plat that would show I was a purchaser of that particular lot." The witness stated further that he may have later signed some other paper, but he could not say exactly what that was.
During the cross-examination of the plaintiff Vernon McKee, counsel for the plaintiffs objected to a part of the testimony, and stated with reference to certain testimony of the witness McKee: "If Your Honor please, I move to rule [out?] that testimony, as to his conclusions about the plat dated April 28, 1945, [to?] which he's referring, for the reason there's no scintilla of evidence in this case from the lips of a living soul, [that?] those signatures were put on there for the purpose of approving those restrictions. The undisputed testimony of Mr. Langford is they were put there for the purpose of identifying the lots."
The trial judge directed a verdict for the defendants. The motion for new trial of the plaintiffs was amended by the addition of a number of grounds objecting to the rulings of the court pertaining to the admission of evidence, and to the direction of the verdict. The exception is to the denial of the motion for new trial as amended.
The parties will be referred to in the opinion as they appeared in the court below.
Generally, the owner of land in fee has the right to use his land for any lawful purpose. Kitchens v. Noland, 172 Ga. 684 ( 158 S.E. 562); England v. Atkinson, 196 Ga. 181 ( 26 S.E.2d 431); Spencer v. Poole, 207 Ga. 155 ( 60 S.E.2d 371). Restrictions upon the use of property not appearing in the chain of title, but alleged to exist by implication, can only be established by evidence that is clear and beyond a reasonable doubt. England v. Atkinson, supra; Shemwell v. McIntosh, 204 Ga. 894 ( 52 S.E.2d 464); Lawson v. Lewis, 205 Ga. 227 ( 52 S.E.2d 859).
The undisputed evidence in the present case shows that W. C. House sold all the property in the year 1945, and the purported restrictions signed by House on April 8, 1946, under the uncontradicted testimony of Gordon Nalley (who stated that he printed the restrictions on the plat), did not come into existence until after January 1, 1946. The testimony for the plaintiffs established that the names appearing on the plat of April 28, 1945, were placed there solely as a means of identification as to whom certain lots had been sold (as stated by counsel for the plaintiffs and set forth in the statement of facts). No other plat was offered in evidence or appears in the record bearing the names of the property owners. The plaintiffs' evidence shows that there were no valid restrictions on the property either by action of the former owner, W. C. House, or by an alleged agreement of the property owners. The testimony of the plaintiff Vernon McKee, while vague and contradictory, and therefore to be construed most strongly against the plaintiffs ( Davis v. Akridge, 199 Ga. 867, 868 (2), 36 S.E.2d 102), was sufficient to show that there was an agreement by the property owners to modify the purported original restrictions claimed by the plaintiffs.
The undisputed evidence demanded a finding that the plaintiffs were not entitled to any of the relief sought by them. If the court erred, as contended, in admitting or excluding certain evidence, the plaintiffs were not hurt by such rulings, since the evidence introduced by the plaintiffs disproved their contentions as to any valid restrictions existing on the property of the defendant Hubert.
Judgment affirmed. All the Justices concur.