162 Ga. 191 | Ga. | 1926
G. C. Smith brought his equitable petition against the Gulf Refining Company, a foreign corporation. It appears from the petition that the plaintiff was the holder of a lease of certain real estate in the Town of Butler, Georgia, for a term of twenty-five years, which the Town of Butler had executed to petitioner; that the latter erected on the lot of land, the subject of
No answer seems to have been filed by the defendants, and no evidence was submitted at the hearing, and the court had for consideration the case as made by the allegations contained in the petition. After argument of counsel, the judge before whom the hearing was had passed an order dissolving the restraining order and denied the injunction prayed. This was excepted to upon the ground that the judge erred in refusing the injunction.
In the conveyance from Smith to Posey, the latter being the grantor of the defendant in this case, is to be found this stipulation, referred to by the parties as an “agreement,” to wit: “It is agreed with the parties hereto that the said J. F. Posey is to use the Standard Oil Co. gas and oil as long as the said G. C. Smith acts as agent for said company and the prices of same are in accord with other gasoline and oils.” Counsel for defendants insist that the clause in the deed which we have just quoted is a covenant, but contends that “it is a personal covenant binding only Smith and Posey;” that it is not a covenant real, that is, a covenant running with the land, and that the defendant, holding under Posey by virtue of the deed from the latter which contained no such covenant, took and holds this property independently of the obligation which would have been imposed had the covenant been one running with the land. The judge hearing the case refused the injunction, whether upon the ground that the clause in the deed referred to was not a covenant, or, if it was, it was a mere personal covenant and not a covenant running with the land, we do not know. If it is not a covenant, or if it is merely