133 Ga. 15 | Ga. | 1909
Lead Opinion
Willbanks brought suit against the railroad company for damages alleged to have been caused by reason of its failure to build three crossings on its right of way acquired from him by deed. The plaintiff alleges: “Petitioner further shows that in the contract made with him by the defendant for the right of way for the construction of a railroad through his said lot of land, No. 308, 9th and 3rd, and as a part of the consideration moving him to convey said right of way to said railroad company, the said railroad company, acting through its agents C. N. King and W. M. Cox, who took said conveyance, promised him to construct three crossings as mentioned in paragraph five of the original declaration. This was done to enable plaintiff to go from one part of his farm to another, and to enable him to reach his timber land lying across the railroad from his house, and to enable him to haul his crops and such timber as he needed across the railroad. This agreement was in parol, and does not appear in the deed he gave to said railroad company, conveying it the right of way. . . In the agreement aforesaid petitioner agreed that he would furnish the timber necessary to construct the said crossing; and pursuant to the said contract, the said railroad company, through its said agent, did construct one of the said crossings, and it began the construction of another one, but before finishing the second crossing it abandoned the same and tore it up, together with the first and complete crossing, carried away the timbers furnished for the construction of the said crossing, and used them on another part of the line of said railroad company.” To this petition general and special demurrers were filed, which the court overruled, and the company excepted.
One ground of demurrer was as follows: “The plaintiff’s petition as amended sets forth no cause of action against defendant, for the reason that the alleged parol agreement was contemporaneous with the written agreement between the parties, and it is not permissible to vary or add to that written agreement by parol proof. The law conclusively supposes the entire contract to be merged into writing; and it appearing that the matters complained of are not contained in the written agreement, there is no right of recovery in favor of plaintiff.
In view of the ruling made, it is unnecessary to consider the other grounds of the demurrer.
Judgment reversed.
Dissenting Opinion
dissenting. The deed from the plaintiff to the defendant was not set out, and the only means of ascertaining its character is by referring to the general allegations in the petition.
. and connected with the said right of way, the said company shall have the right to cut down and remove all such trees, underwood, and growth, and timber on each side of said road as would, by falling on or striking the same, injure the rails or other parts of said road; together with all and singular the rights, members, and appurtenances to the said strip, tract, or parcel of land being, belonging, or in any wise appertaining, and, more especially, the right of way over the same; to have and to hold the same unto the said Opelika & Oxford B. B. Company, their successors and assigns, to their own proper use, benefit, and behoof forever, in fee simple.” On page 350, the court, in considering the deed, among other things said: “The right granted was merely a right of way for a railroad. It was granted to an existing corporation, which had a franchise.The grant to the ‘assigns’ of the corporation can not be construed as extending to any assigns except one who should be the assignee of its franchise to establish and run a railroad. Nor did the mention of rights, members, and appurtenances belonging and appertaining to the strip of land, or the use of the words ‘forever, in fee simple,’ enlarge what was otherwise ..the limited character of the grant. No fee in the land was conveyed, nor any estate which was capable of being sold on execution on a judgment at law, or separate from the franchise to make and own and run a railroad. The corporation could not have made a voluntary conveyance of the right of way, severed from its franchise. What it acquired was merely an easement in the land, to' enable it to discharge its function of making and maintaining a public highway, the fee of the soil
With the question of incompatibility between the use by the railroad company and the use by the landowner eliminated, the case is governed by the general and well-recognized rule that the consideration of a deed may be inquired into whenever the ends of justice require. Civil Code, §§5208, 3599. A grantor is not estopped by a deed from proving- a different consideration from that expressed in the deed. Johnson v. McComb, 49 Ga. 120, 123, and cit. The statute of frauds is not violated by showing that the consideration of the- deed is the performance of a parol agreement. Stringer v. Stringer, 93 Ga. 320 (20 S. E. 242). In the case just cited the decision was upon demurrer. It is alleged in the petition, that, “On July 22, 1871, plaintiff sold to defendant a tract of land, described in a copy of a deed attached, for $500. The defendant never paid anything for the land, and under the contract was not to pay anything at that time, and in all probability would never be required to pay anything, as the plaintiff was then in good circumstances, and thought he never would call on defendant for payment, thinking he would be able to give the amount to defendant; but in the abundance of caution he contracted with defendant, his son, at the time and before the deed was made, and it was expressly agreed by them, that he, plaintiff, would make the deed, and should he at any time during his life lose his money and property, and become in needy circumstances, and call on defendant for help, defendant was to furnish him his support as long as the same was needed by him, or until defendant had furnished $500, the price and value of the land. Some time in 1885 or 1886 plaintiff’s mind gave way,
The ruling made in Louisville &c. R. Co. v. Holland, 132 Ga. 173 (63 S. E. 898), is not applicable here. That case did not involve inquiry into the consideration of a deed, but the effort was to show by parol that the road-bed should not be located at a particular place, thus varying the writing which in general terms authorized its location anywhere on the land; nor was the doctrine of incompatible easements involved. A copy of the deed involved in that case was set out in full in the record, and shows affirmatively that the grant conveyed land in fee simple to the defendant, and not a mere easement. In that case, by his grant, the landowner parted with every interest he had in the land. The same is true with respect to the deed involved in the case of Cook v. North & South Railroad Company, 50 Ga. 211. As reported, the character of the deed does'not appear; but the original record in this court shows that a copy of the deed was set out as exhibit “A” to the defendant’s answer. From that copy it appears that the absolute title to the land was conveyed. As the grantor conveyed the title in fee, no interest remained in him, and necessarily his subsequent effort to exercise an easement was incompatible with his grant, and he was not permitted to inquire into the consideration where such inquiry involved a limitation of the grant. From what has been said the distinction between that and the present case is apparent.