Hamm v. Wilson

151 S.E. 11, 169 Ga. 570, 1929 Ga. LEXIS 409

Opinions

Russell, C. J.

1. “The restriction, ‘for residence purposes/ as contained in the deed involved in this case, does not prohibit the erection of apartment-houses used exclusively for residence purposes.” Courtney v. Hunter, 159 Ga. 321 (125 S. E. 714), and cit.

2. A restrictive covenant in a deed of conveyance, stipulating that “the lot shall not be subdivided, and only one residence shall be erected on each lot,” is not broken by the building of a separate dwelling-house on either lot, although the dwelling-houses on the two separate lots both join a brick party-wall built on the line between said lots. Hamm v. Wilson, 168 Ga. 670 (148 S. E. 593). The deed here in question contains no provision debarring the purchaser of the lots from building up to the dividing line of each lot; so there is no breach of the covenant that “only one residence shall be erected on each lot.”

3. The judge of the superior court based his ruling in this case upon the ground that an apartment-house is more than one residence, and therefore the restriction mentioned above would be violated by the erection of an apartment-house. In Hamm v. Wilson, supra, this court held that an apartment-house consisting of more than one section was nevertheless a residence, and that a provision restricting the use of a lot to residence purposes was not violated by the erection of one or more residences for use by different occupants, although the building as a whole was covered by the same roof. A restriction that “only one residence shall be erected on each lot,” under a well-settled rule, will not be extended beyond its plain meaning. The language of the restriction in this case makes no reference to anything except the nature of the building and the limitation of one building on each lot. An apartment-house is only one building. It is a residence building only, designed, it is true, for the occupancy of more than one resident, but the entire building is restricted to residential purposes; and if the grantor had so desired) a restriction could easily have been framed which would have debarred the erection of an apartment-house upon any or all of the lots.

4. The court erred in granting the injunction.

Judgment reversed.

All the Justices concur,

except