dissenting.
The majority opinion applies Code Ann. § 29-301 (Ga. L. 1935, p. 112; 1962, p. 540; 1971, p. 814) retroactively so as to nullify covenants created prior to its adoption. This is prohibited by both the Georgia Constitution and the United States Constitution (Code Ann. § 2-302; Code § 1-134), which bar the passage of any law impairing the obligation of contracts. Even though the constitutionality of the statute is not attacked in this case it is the duty of this court to give the statute prospective application when such construction would render it constitutional rather than give it a retroactive application which would render it unconstitutional. Federal Deposit Ins. Corp. v. Beasley, 193 Ga. 727 (2) (20 SE2d 23); Sharpe v. Lowe, 214 Ga. 513, 516 (106 SE2d 28); Todd v. Morgan, 215 Ga. 220 (2) (109 SE2d 803). As stated in Dooley v. Savannah Bank &c. Co., 199 Ga. 353, 364 (34 SE2d 522): "Nor was there any merit in 'Defense Five,’ in which it was averred that the covenant in question had expired by operation of law under the Act of 1935, declaring that 'covenants restricting lands to certain uses shall not run more than 20 years in municipalities which have adopted zoning laws.’ Ga. L. 1935, p. 112; Code Ann. § 29-301. Properly construed, the Act of 1935 was not intended to operate retrospectively, and would not have the effect of terminating a covenant that was already in existence as a valid and binding contract between the parties. Code § 2-302; Smith v. Pindar Real Estate Co., 187 Ga. 229 (3) (200 SE 131).”
I respectfully dissent. I am authorized to state that Presiding Justice Nichols concurs in this dissent.