135 Ga. 572 | Ga. | 1911
(After stating the foregoing facts.) The definitions of personal covenants and covenants running with land are. not difficult, but sometimes it is a matter of no small difficulty to declare whether a particular covenant belongs to the one class or to the other. The difference in consequences between a covenant the obligation of which remains fixed upon particular contracting parties and one in which a conveyance of the land is accompanied by the obligation, is great. In the case before us a proposition was made for the purchase of land on certain stated “terms, covenants, and conditions.” After stating them, it was added: “the covenants and agreements herein stated to be incorporated in the deed to said property, so as to run with the land sold.” The
Was it the agreement of the parties that the terms of the preliminary contract of purchase.should be binding upon each person who should succeed to the ownership of the land, pending the holding, as a covenant running with and resting upon the land sold, and also that the original purchaser should remain bound by the “terms, covenants and conditions” of the preliminary contract of purchase, regardless of who owned the land ? Suppose that the adjacent land should pass by sale, private or public, into entirely different hands, was it the legal import of the contract that the Atlanta, Knoxville and Northern Railway Company should nevertheless enter on it, lay out a street, build walls, etc? We do not mean that cases may not exist where a personal contract binds one who is-a party to it, although he has parted with his title, and his grantee or assignee takes cum onere, subject to the covenant, while he holds; but we do not think that the terms of the contract before us have that effect, or are sufficient to save the case from the general rule that terms of purchase are merged into the deed.
There are cases where a contract provided for the making of a deed and also contained some other separate and distinct collateral agreement by one or the other of the parties, and where the 'entire contract was held not to be merged in the deed. Instances of this kind will be found in Morris v. Whitcher, 20 N. Y. 41, and
It was contended that the Atlanta, Knoxville & Northern Bail-way Company could assign its rights under the preliminary contract, but could not assign its liabilities, and that its obligations remained of force. The agreements in that contract were mutually binding upon the parties to it. Certain things were set out as covenants and conditions of the purchase and sale of the land, and one of the agreements, binding on both, was that these covenants were to be written in the deed, “so as to run with the land.” When the, deed was executed to the Louisville Property Company, which is alleged to have been the assignee of the interest of the railway company, those agreements and covenants were written into it, but there was also inserted a clause which very materially changed the right of enforcement of them, making such right contingent, instead of absolute. It read: “ Said conditions shall not be enforcible, except as to removal of the round house, until the City of Atlanta allows exchange of streets, exchange of engine-house property and other changes shown in the blueprint drawing of the proposed enlargement of railroad terminals referred to in said proposal of February 20, 1904.” There was no allegation that the City of Atlanta had allowed these changes, which allowance was thus made a condition, precedent to the enforcement of the covenants included in the
It is no sufficient answer to the want of any allegation on the subject of the allowance of the exchanges on the part of the city, to say that it was alleged that the Louisville & Nashville Railroad Company was in possession of the land sold and that Vaverly Place, as it existed when the contract was made, was in the possession and exclusive use of the defendants, in connection with other terminal facilities, when the suit was brought. If the allegations that the Louisville & Nashville Railroad Company was the successor in interest of the Atlanta, Knoxville & Northern Railway Company and was in possession of the' land covered by the contract, and that the Louisville Property Company held the legal title for the first-mentioned company, are to be taken as meaning that the Louisville & Nashville Railroad Company stands in the same position as the Louisville Property Company, then the above-mentioned provision inserted in the deed would enure to its benefit.
It was contended that the contract agreed to give to the plaintiff an easement of way, regardless of the public street. A person may have an easement, without reference to the rights of the public. But the contract here involved was not merely for an easement, lmt
The presiding judge did not err in sustaining the demurrer and in dismissing the petition.
Judgment affirmed, on main hill of exceptions. Gross-bill dismissed.