Louisville & Nashville Railroad v. Nelson

145 Ga. 594 | Ga. | 1916

Lead Opinion

Atkinson, J.

1. In a different suit brought by the church against the first contracting railroad company upon the executory contract, after the church had executed its deed, this court held that the contract was merged into the deed and could not be enforced against the original purchaser as containing personal covenants. Nelson v. Atlanta, Knoxville & Northern Ry. Co., 135 Ga. 572 (69 S. E. 1118). After that decision the present suit was instituted against the lessees (the grantees in the last deed); and it is now urged that the petition does not show such privity.of contract between the church and the lessees as will support an action for specific' performance. The first deed, being that which was executed by the church to the Louisville Property Company, set out the covenants specifically, and the grantee accepted it and took possession under it. Such, acceptance would make the covenants so expressed in the deed binding upon the grantee, notwithstanding the grantee did not sign the paper. Georgia Southern Railroad v. Reeves, 64 Ga. 492; Atlanta, Knoxville & Northern Ry. Co. v. McKinney, 124 Ga. 929 (53 S. E. 701, 6 L. R. A. (N. S.) 436, 110 Am. St. 215); Kytle v. Kytle, 128 Ga. 387 (57 S. E. 748); Union City Realty Co. v. Wright, 138 Ga. 703 (76 S. E. 35). Under the principle of the cases cited, the second deed, that is, the deed from the Louisville Property Company and the Louisville & Nashville Eailroad Company to the Louisville & Nashville Eailroad Company and the Atlantic Coast Line Eailroad Company, having expressly referred to the covenants in the first deed and “assumed” performance thereof, and the grantees having accepted the deed and possession under it, such acceptance would commit the grantees, as against the grantors, to the performance of the covenants. Thus far, it is demonstrated that the grantees in the last deed have promised the grantees in the first deed to perform the covenants set out in the first; but it remains to be determined whether the promise will authorize the grantor in the first deed to sue the grantees in the last, directly in equity, for specific performance of the covenants. The case of Bell v. McGrady, 32 Ga. 257, was where a firm engaged in a livery-stable business purchased a horse and buggy, giving therefor its promissory note, which was transferred by the payee to another person for value.” Shortly thereafter the firm sold out, including the horse and buggy with the property sold, and the purchaser agreed in writing to pay all the debts and liabilities of the firm. The firm became insolvent, and one of its members absconded. The holder of the mote filed a bill in equity against the members of the firm and the purchaser, to compel the latter to pay the note. A judgment dismissing the bill was reversed; this court ruling; in effect, that the purchaser of the assets of the firm, by virtue of his agreement' with them, stood in the position of a trustee to pay their debts, and that if was proper for. the creditor to go into equity to enforce this agreement. The principle of that case was also applied in Dallas v. Heard, 32 Ga. 604; Sheppard v. Bridges, 137 Ga. 615 (74 S. E. 245); Union City Realty Co. v. Wright, supra; Williams v. American Tie & Timber Co., 139 Ga. 87 (76 S. E. 675). See also Grooms v. Grooms, 141 Ga. 478 (81 S. E. 210). The present case also falls within the principle. The defendants received from the Louisville Property Company, a non-resident corporation, all of the property, and made a binding promise to that company to perform the identical covenants which had been made to the plaintiff in regard to relocating Waverly Place. No complaint was' made that the Louisville Property Company was not made a party to the case; but if generally that company would be a necessary party, it would not be under the circumstances of this case, it appearing from the recitals in the second deed and allegations of the petition that its relation to the contract with the plaintiff and title conveyed by the plaintiff was fiduciary and in behalf of the Louisville & Nashville Eailroad Company, which was one of the defendants. That company being a principal, which both defendants recognized by execution of the second deed in which it was both a grantor and a grantee, and being a party defendant, it was unnecessary to make the fiduciary a party.

2. In the foregoing division it appears that the covenant to relocate Waverly Place was in writing and operated against the defendants as covenantors, as if both had signed the deed. It was in effect an agreement upon a valuable consideration to open a public street through land which they acquired, which street would be so located with respect to the plaintiff’s property as to afford a direct way of ingress and egress to the church from the central part of the city. This amounted to an agreement with the plaintiff fo establish an easement over the land of the defendants, which would be beneficial to the covenantee. The easement would be an incorporeal right over the land, and such that for a refusal to carry out the covenant an action in behalf of the covenantee would ordinarily lie against the covenantor for specific performance. Russell v. Napier, 80 Ga. 77 (4 S. E. 857). Treating the covenant as reduced to writing and relating to land, and certain and fair in all its parts, and based on an adequate consideration and capable of being performed, a court of equity will decree specific performance of it as a matter of course. Clark v. Cagle, 141 Ga. 703 (82 S. E. 21, 53 L. R. A. (N. S.) 317), and numerous cases collated in 11 Michie’s Dig. Ga. E. 764. As indicated by the statement of facts, it appears from the face of the petition that the covenant was certain and fair in all its parts, based on an adequate consideration, and capable of being performed. The mere fact that the covenant was for the location of a public street, as distinguished from a private way, would not affect the right of the covenantee to the easement. Edwards v. Moundsville Land Co., 56 W. Va. 43 (48 S. E. 754). The covenant extended further than the mere granting of a right to pass over the lands of the covenantor, and contained an obligation upon the part of the covenantor to construct a street and sidewalks in a particular manner, to be adopted by the city and maintained as a public street; and it was .coupled with the further condition that the covenant should not be enforceable until the city had allowed the substitution of the new ' street for that which had formerly existed. To meet this condition, it was alleged that the city had formally adopted an ordinance authorizing the discontinuance of the old street and location of the new, and that no cause existed to prevent the covenantors from locating the street in accordance with the terms of the covenant.

3. It was also contended that plaintiff was barred, on account of delay in instituting the suit, from maintaining his action for specific performance. In the Civil Code, § 4369, it is declared: “The limitations herein provided apply equally to all courts; and in addition to the above, courts of equity may interpose an equitable bar whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights.” In the Civil Code, § 4536, it is declared: “Equity gives no relief to one whose long delay renders the establishment of the truth difficult, though no legal limitation bars the right.” The covenant to relocate Waverly Place, which was the basis of the action, though contained in the executory contract made in 1904 and the deed executed by the church to the Louisville Property Company in the same year, was also included in the deed executed to the defendants, which was dated February 1, 1908. Up to that time there was no repudiation of the covenant, but a promise upon the part of the defendants to perform it. It is not alleged when the defendants refused to perform it, but of necessity it was subsequent to February 1, 1908. The action for specific performance was instituted January 3, 1913. It does not affirmatively appear from anything alleged in the petition that any delay upon the part of the plaintiff in instituting the suit was sufficient to render the ascertainment of the truth difficult, or that on account of the lapse of time it would be inequitable to allow the plaintiff to enforce Ms rights.

4. The ruling announced in the fourth headnote does not require elaboration.

Judgment affirmed.

All the Justices concur.

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Concurrence Opinion

Lumpkin, J.,

concurring specially. I concur in the affirmance of the judgment overruling the demurrer to the plaintiff’s equitable petition; but I am not prepared to concur in what is said as to the application of the decisions in Sheppard v. Bridges, 137 Ga. 615 (74 S. E. 245), and like cases.