Augusta Land Co. v. Augusta Ry. & Elec. Co.

• Decision Date: 14 August 1913
• Citation: 79 S.E. 138,140 Ga. 519
• Parties: AUGUSTA LAND CO. v. AUGUSTA RY. & ELECTRIC CO. et al.
• Court: Georgia Supreme Court

79 S.E. 138

140 Ga. 519

AUGUSTA LAND CO. v. AUGUSTA RY. & ELECTRIC CO. et al.

Supreme Court of Georgia

August 14, 1913

Syllabus by the Court.

Where a written agreement was entered into between two corporations whereby one was to execute a deed to the other upon certain conditions, and subsequently a deed in fee simple to the land referred to in the agreement was executed, reciting in the preamble thereof that whereas, by agreement between the parties, the grantor agreed to convey to the grantee certain land on "certain conditions, which have since been complied with," but the habendum clause of the deed contained no such conditions, the conditions of the agreement were merged in the conveyance, and the grantee in the deed held the land freed from the conditions contained in the agreement.

Where a deed purports on its face to convey certain land from one corporation, as grantor, to another and the corporate name is signed to the deed by the president thereof, with the corporate seal attached, the presumption is that the official or executive officer was authorized to execute the conveyance on behalf of the corporation.

It follows that a petition disclosing the facts set out in the preceding notes, seeking to recover the land on the ground of a breach of the condition subsequent contained in the agreement, filed by the grantor against the holder of the land under the deed, is subject to general demurrer.

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

Action by the Augusta Land Company against the Augusta Railway & Electric Company and another. Judgment for defendants, and plaintiff brings error. Affirmed.

The Augusta Land Company brought its petition against the Augusta Railway & Electric Company and the Augusta-Aiken Railway & Electric Corporation to recover 10 acres of land known as "Lake View Park," with mesne profits. No equitable relief was prayed. The case came on to be heard before the court upon a general and special demurrer to the petition. The court below sustained the demurrer generally, and dismissed the suit. To this judgment the plaintiff excepted.

The petition alleges substantially:

The Augusta Railway & Electric Company and the Augusta-Aiken Railway & Electric Corporation (as the successor in title of the Augusta Railway & Electric Company) have been in possession of the land since July 17, 1896. On June 29, 1900 the Augusta Land Company executed to the Augusta Railway & Electric Company a warranty deed conveying the 10 acres in controversy in fee simple, without any condition or restriction. An agreement was entered into on August 3, 1895, between these two companies, whereby the railway company agreed to "build equip, and operate an electric line of street cars from its then terminus, in Harrisburg, out Broad street to High street, thence on High street to Greene street, thence on Greene street to either Milledge street or Crawford avenue, at the election of your petitioner, to Broad street, where it should connect with the street car line thus extended; *** that cars should be operated on said line (thus to be constructed) at intervals not exceeding 30 minutes, unless prevented by strikes, break-downs, or unavoidable accidents." It was agreed between the parties that, upon completion of the work and commencement of the operation of the cars, the plaintiff would convey the 10 acres of land now in controversy. The agreement also provided that "the conditions in said deed shall be as follows: The said tract of 10 acres shall be conveyed to the party of the second part to be used as a public park for white persons only, and to this end the party of the second part may improve said land in any manner it sees fit by buildings, landscape gardening, etc., and shall have full and entire control over the land and all improvements. The party of the second part shall pay all taxes and assessments of whatever kind upon said property, payable after the delivery of the deed, and shall remain in full control thereof so long as it continues to use and operate the said line of cars as heretofore agreed, or until it ceases to use said tract for the purposes of a public park, in either of which events said land shall at once revert to the party of the first part, and all possession and control of the party of the second part shall cease at once, except that it shall have the right and privilege of entering the same within one year of such reversion for the purpose of removing any building which it may have erected while in possession--such removals to be without injury to the land, and the land to be left in as good condition as when first entered by the party of the second part."

The deed did not contain any of the conditions, but was a warranty, fee-simple deed, without condition. The deed does contain, however, the following reference to the agreement: "Whereas, by agreement between the Augusta Land Company and the Augusta Railway Company, dated August 3, 1895, recorded in the office of the clerk of the superior court of said county, in Book YYYY, folio 552, the Augusta Land Company agreed, upon certain conditions, which have since been complied with, to convey to the said Augusta Railway Company certain land in said agreement described; and whereas, by deed dated March 21, 1896, recorded in said office in Book YYYY, folio 494, the said Augusta Railway Company transferred to Samuel M. Jarvis and Roland R. Conklin all its right, title, and interest in and to all the property mentioned in said agreement; and whereas, all the interest, right, and title of said Samuel M. Jarvis and Roland R. Conklin in and to all the ten lots mentioned in said agreement were duly transferred by Samuel M. Jarvis and Roland R. Conklin to D. B. Dyer, by instrument dated July 23, 1896, and recorded in said office in Book --, folio --; and whereas, to confirm and carry out said agreement, the Augusta Land Company issued a deed conveying the same ten lots to D. B. Dyer, dated February 4, 1899, recorded in Book MMMMM, folio 343; and whereas, all the rights, title, and interest of Samuel M. Jarvis and Roland R. Conklin in and to the ten acres of land mentioned in said agreement was duly transferred by said Samuel M. Jarvis and Roland R. Conklin to the Augusta Railway & Electric Company by instrument dated July 23, 1896, and recorded in said office in Book AAAAA, folio 305; and whereas, it is necessary for the said Augusta Land Company to issue a deed to the said Augusta Railway & Electric Company to confirm and perfect the title as aforesaid: Now, therefore, this indenture, made this 29th day of June, 1900, between the Augusta Land Company, a corporation of said county and state, as party of the first part, and the Augusta Railway & Electric Company, of said county and state, party of the second part," etc.

It is alleged in the petition that the railway company constructed the lines as agreed upon, and operated them until the spring of 1902, when, after the deeds had been executed, the railway company tore up the rails and cross-ties, etc., which had been built under the contract of August 3, 1895, and ceased and abandoned the operation of street cars along the line of the streets as stipulated, and no other railroad tracks have been placed or located on the streets, and no cars have been operated at intervals of 30 minutes, or otherwise; that on May 24, 1911, the Augusta Railway & Electric Company entered into a written agreement with the Augusta-Aiken Railway & Electric Corporation, whereby it sold and conveyed to the latter company all of its railroad property, and all of its other property, including the 10 acres of land in controversy; that the property was conveyed subject to all valid liens, debts, obligations and liabilities of the Augusta Railway & Electric Company of every kind; that the tearing up of the tracks, and the discontinuance of the operation of cars, was a breach of the conditions subsequent which under the agreement of 1895 were to be incorporated in the deed, and the failure to do so was a fraud on the part of the defendant against the plaintiff, and by reason of the breach of the conditions in the agreement the land reverted to the plaintiff by the terms of the agreement.

The grounds of demurrer were that the petition does not set forth a cause of action, and that it appears on the face of the petition and exhibits attached thereto that the defendant and its predecessor in title have been in adverse possession of the land sued for under written evidence of title for over 7 years.

E. H Callaway, of...