137 Ga. 325 | Ga. | 1912
The defendants in error, Harriet E. Smart and Arthur T. Smart, executors of A. G. Smart, on April 1st, 1908, sold a city lot to W. E. Wimpey for $20,000. The vendee paid $4,000 cash, and gave his notes for the remainder; and the vendors executed to him a bond for title, obligating themselves to make a good and sufficient title to the premises to the vendee upon his payment of the balance of the purchase-money. In the bond for title the premises were described as “all that tract or parcel of land lying and being in the City of Atlanta, in the fourteenth district of said county, and being a portion of land lot No. Fifty-One (51), and described as follows: Commencing on the East side of Peachtree Street, at the North line of T. L. Langston’s lot, and extending thence North along the East side of Peachtree Street forty-nine (49) feet to a ten (10) foot joint alley, thence East along said alley two hundred (200) feet to the E. C. Mitchell lot, thence South forty-nine (49) feet to T. L. Langston’s lot, and thence West along said Langston’s line two hundred (200) feet to the beginning point, and having thereon a two-story frame-dwelling and known as No. 263 Peachtree Street, between Harris and Baker Streets, and being the land conveyed by deed from Mrs. Fowler to the said A. G. Smart, by a deed recorded in Deed Book, F-4, page 18, on Feb. 10, 1892.” The vendee failed'to pay the purchase-money notes at maturity, and the vendors brought suit thereon. The defendant pleaded partial failure of consideration, in that an abutting landowner had made a permanent encroachment on the alley, which encroachment had existed for more than twenty years, and reduced the width of the alley at the place of encroachment to five and one half feet. After the evidence was closed a verdict was directed for the executors for the full amount of the notes sued on. Wimpey excepted.
It appeared on the trial that Mrs. Flora Fowler owned a lot of land in the city of Atlanta, abutting on Peachtree street and embracing the premises sold by the executors of Smart to Wimpey. On November 24, 1874, Mrs. Fowler conveyed to W. L. Goldsmith a part of the lot described as fronting fifty feet, more or less, on the east side'of Peachtree street, adjoining the land of Mrs. Fowler and Dougherty, extending back two hundred feet to Mr. Mitchell’s lot, with a ten-foot alley between the parties to the deed, extending back two hundred feet, for the mutual benefit of both parties
Where a conveyance of land calls for a- street or alley as a boundary, if the grantor has the fee of the land thus referred to, he is estopped to deny that it is a street, and a right of way passes to the grantee by implication of law. Schreck v. Blun, 131 Ga. 489 (62 S. E. 705). As has been well said by the Supreme Court of Oregon: “This doctrine rests upon the fact that the grantor, by describing the land as bounded by a way, when he is the owner of the soil under the way, intends thereby to confer upon the grantee, as appurtenant to the granted premises, the right to use such way, and whether it be deemed to operate as an implied grant, covenant, warranty, or estoppel binding on the grantor, his heirs or assigns, is immaterial..” Lankin v. Terwilliger, 22 Or. 97 (29 Pac. 268). The necessity that the grantor own the land represented as a street before a covenant of easement over it can be implied is apparent. In the absence of an express grant, a grantor will not be presumed as intending to pass, as an appurtenance to the land conveyed, an easement over the land of another. If he gives a street or way as a boundary, he will be estopped by his deed from denying the existence of the street or way. This estoppel results from the effect to be given to his deed; for every grant should be so construed as to give the grantee the benefits intended to be conferred by the grant, and the grantor will not be permitted to close up the way or do anything that will defeat or essentially impair his grant. Parker v. Framingham, 8 Met. 268. When'a way is given as a boundary, the implication of a grant of an easement is dependent upon the grantor’s ownership of the servient fee; nevertheless he is estopped by his deed from contesting with his grantee the latter’s right to use the way, whether the ownership of the servient fee be in him or in another. This distinction has not always been clearly observed in the cases bearing on the question, but where the express point was made the distinction was noted and the case decided accordingly. In Howe v. Alger, 4 Allen, 206, the grantor described the prem
The vendee set up in his plea the vendors’ assurance that the northern boundary was an alley ten feet wide throughout and extended that width the full depth of the lot, and, having complete confidence in the statements and representations made by the vendors, and the description of the alley as laid in the bond for title, he
Judgment affirmed.