108 Ga. 634 | Ga. | 1899
It appears from the record that Rawlins made and executed a deed, signed and sealed by him and by the Metropolitan Street Railroad Co., wherein he conveyed to that company a right of way over certain lands belonging to him in Fulton county. The deed contained the clauses set out in the headnotes preceding this opinion, and these clauses are there given with sufficient fullness for the purposes of this decision. The railroad company appears to have been in possession of the right of way when the deed was executed. After running its cars over this right of way for several years, it became insolvent and its assets were placed in the hands of a re-, ceiver, and finally sold under a decree of the court and purchased at the sale by the Atlanta Consolidated Street Railway Co. The latter company went into possession and ran its cars Over this right of way for some time after the purchase, but subsequently abandoned it and removed its tracks. Rawlins having died before this removal, his heirs at law brought an action of covenant against the Atlanta Consolidated, claiming damages for a breach of the covenant, brought about by the
For these reasons we think the court erred in overruling the demurrer of the defendant to the plaintiffs’ petition.
Judgment reversed.