Opinion
Argued December 3, 1895
Decided December 19, 1895
L.C. Whiton for appellant. Mirabeau L. Towns and James S. Wilson for respondents.
This action was brought to enforce by injunction certain restrictions imposed by plaintiff's deed executed to the defendant Solly. The injunction has been refused by the courts below and the plaintiff company appeals. It now produces to us the written consent of the defendant Solly for a reversal of the judgment, properly executed and acknowledged and signed also by his counsel. That makes it our duty to reverse the judgment as to him. But his co-defendant, Lange, has made no such stipulation. On the contrary, he appears and has filed a brief asking an affirmance of the judgment. The findings show that Solly paid for the premises, erected the building and sublet to Lange upon the faith of representations made to him by the general agent of the plaintiff that there were no restrictions on the property and it could be used for business purposes. Solly paid for the land and at once began the erection of a building with a store front in June of 1891 and got his deed only in the following September. Observing the restrictions, he went to the general agent with the deed and the latter assured him they would not interfere with him. On that assurance he accepted and recorded the deed. Thereafter he leased to the defendant Lange knowing that the latter was intending to use the premises for the sale of intoxicating liquors. Upon the findings the judgment rendered was right, and so far as the defendant Lange is concerned should be affirmed, with costs. We are not responsible for the reversal as to Solly which rests wholly upon his consent.
The judgment should be reversed and new trial ordered, with costs to abide the event as against the defendant Solly, but affirmed, with costs, as to defendant Lange.
All concur.
Judgment accordingly.