46 Ga. 19 | Ga. | 1872
The plaintiff brought his action against the defendant to recover the one-half of the cost or value of the erection of a party-wall under an alleged agreement between the parties, who were the owners of adjoining city lots in the city of Atlanta. On the trial of the case the jury, under the charge
Bell, the plaintiff, owned the city lot described in the declaration, and Rawson, the defendant, owned the adjoining lot. Bell desired to build, and proposed to Rawson to erect the dividing wall between their two lots so as to place one-half thereof on Rawson’s land. Rawson agreed to it, at the same time agreeing to pay for one-half of as much of the wall as he used in building himself when he built, and also specifying that he would not want to erect as high a house as Bell contemplated, but would only want to build a two-story house without any basement or cellar. This agreement was by parol. Bell proceeded to build, and placed the dividing wall half on his own and half on Rawson’s land, according to the agreement. The wall was sixty feet long and sixteen inches thick, eight inches of it being on Rawson’s land. After its completion, to-wit: on the 20th day of December, 1866, Bell sold his lot, together with the appurtenances, executing a regular warrantee deed for the same to N. L. Angier. Afterward, to-wit: on the 10th day of January, 1867, Rawson sold his lot to the same Angier, together with the appurtenances, executing also a regular warrantee deed for the same. Angier testified that when he bought from Bell nothing was said in relation to the party wall or the claim against Rawson for the share of its cost, but when he bought of Rawson the subject was mentioned by Rawson, who stated to him the agreement between him and Bell, and also stated that as he (Rawson) would never build, he supposed that he (Rawson) would never have anything to pay
Two questions are made by defendant: First, that this was a parol contract for the sale of land, and is therefore void under the Statute of Frauds. Second, if it is not void on the ground of part performance of the parol agreement by the plaintiff, then it is an agreement in the nature of a covenant, which attaches to and runs with the land, and that the plaintiff’s remedy is against the defendant’s grantee, or those claiming under him, who should build on the lot and use the wall, and not against the defendant, who did not build on the lot prior to his alienation of the same. As to the first question, the building of the party Avail by the plaintiff, under the parol license and agreement of the defendant, Avas such a part performance as takes it out of the operation of the Statute of
An executed agreement which will constitute an easement attached to and running with the land, is one thing. Whether such an agreement has been executed on the part of both the parties to it, is another and quite a different thing. The question in this case is, not what would have been the legal effect of this agreement upon the land, if it had been executed and performed according to the true intent and meaning thereof as understood by the parties thereto; but the question is, whether that agreement has been executed and performed by the defendant to the plaintiff, as the same was understood by the plaintiff, and known by the defendant to be so understood by him at the time it was made.
As no time was specified within'which the defendant was to build and pay the plaintiff for one-half of the wall to be used by him, the law will imply that it ivas to be done within a reasonable time, and the defendant having put it out of his power to conqffy with his agreement .with the plaintiff by conveying the property to another, the plaintiff’s right of action accrued to him. Although we should have been better satisfied with the charge of the Court if it had clearly called the attention of the jury to the distinction between an executed agreement of the parties which would have created an easement attaching to and running with the land, and an agreement which had not been executed and performed by one of the parties to it, still there was sufficient evidence in the record to authorize the charge as given, and the verdict being right under the evidence and the law applicable thereto, we will not disturb it.
Let the judgment of the Court below be affirmed.