Horne v. Macon Telegraph Pub. Co.
| Decision Date | 23 September 1914 |
| Docket Number | 599. |
| Citation | 83 S.E. 204,142 Ga. 489 |
| Parties | HORNE ET AL. v. MACON TELEGRAPH PUB. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where A. and B. own two adjoining lots as tenants in common, and A conveys his interest in one of the lots to B., and B. conveys his interest in the other lot to A., and it is provided in each deed that the grantee and his "heirs and assigns" shall "have the right at any time to build a party wall between the property hereby conveyed, * * * the expense of which shall be borne equally by the owners of the contiguous lots, and which party wall shall be built equally on the land of the owners of said contiguous lots, and shall be subject to the right of enjoyment equally by them," such agreement constitutes a covenant running with each lot of land.
In such a case, where the deeds are duly executed and recorded, this is notice to the subsequent purchasers of what easements or rights the grantor has conveyed, and binds the successor in title of the covenantor to such agreement.
On the trial of an action brought by a joint owner of a party wall to recover one-half of the cost of building such wall from the other joint owner, who was a purchaser from one of the covenantors, it was not error to refuse to allow such purchaser and joint owner to testify that he had no actual notice of the agreement in the deed from the other covenantor to the covenantee, where it also appeared on the trial that such agreement was contained in the deeds which had been properly executed and recorded.
It was not error, under the facts of this case, to direct a verdict for the plaintiff, and enter up judgment to enforce an equitable lien upon the land for the amount found to be due.
Error from Superior Court, Bibb County; H. A. Mathews, Judge.
Action by the Macon Telegraph Publishing Company against E. A. Horne and others. Judgment for plaintiff, and defendants bring error. Affirmed.
The Macon Telegraph Publishing Company brought suit against Edward A. Horne, Alfred R. Willingham, and Jesse H. Hall, and alleged substantially the following: Edward A. Horne and Amelia Horne were owners, as tenants in common, of certain land in the city of Macon, composed of two parcels, which they divided by each one making to the other a quitclaim deed to the grantor's interest in the other's half, on May 27, 1892. (The material facts relating to these deeds are stated in the opinion, infra.) Afterwards the Macon Telegraph Publishing Company became the owner by purchase from Amelia Horne of her lot, "together with all the rights members, and appurtenances thereunto in any way appertaining or belonging," and continued to own the same to the present time. In the years 1910 and 1911 the plaintiff built a party wall between its land and the parcel of land, a half interest in which Amelia Horne had conveyed to Edward A. Horne. The wall was built equally upon the two parcels. Before the building was commenced the plaintiff invited and requested Edward A. Horne to confer and co-operate with it in planning and building the wall, and offered to regard his wishes as to the kind of wall to be built and plans for the manner of building; but Horne declined and refused to treat with the plaintiff in any manner concerning the building of the wall. The wall was properly built, of such material and in such manner as to be reasonably suited to the uses of the owners of the contiguous lots, and so as to be subject to the rights of enjoyment equally to them. After the building of the wall was begun, and before it was completed, Alfred R. Willingham became the owner by purchase from E. A. Horne of the Horne lot of land; and again before its completion Jesse H. Hall became the owner by purchase from Alfred R. Willingham of that lot. Since the wall was built it has been and still is used as a support for, and as a part of, the building on the tract of land described. The reasonable expense of building the wall was $2,275, all of which the plaintiff paid in full. It prayed to recover of the defendants jointly and severally $1,137.50, with interest, and to have a decree declaring the sum due to be a charge and lien upon the land owned by the defendants, and that the land be sold in satisfaction of the sum found to be due.
A. R. Willingham and J. H. Hall filed their demurrers, general and special, which (the plaintiff having amended his petition) were overruled; and they filed exceptions pendente lite. By their answer they denied the material allegations of the petition. Horne filed no answer. After the submission of the testimony the court directed the jury to render a verdict for the plaintiff against E. A. Horne personally, and against the property specially, for the amount claimed, with interest, and decreed that the plaintiff have a charge and lien for the amount of the recovery upon the land conveyed by Horne to Willingham and by Willingham to Hall. Willingham and Hall excepted.
John P. Ross, J. E. Hall, and Wallace Miller, all of Macon, for plaintiffs in error.
John R. L. Smith, of Macon, for defendant in error.
The question to be decided is, Does the party-wall agreement contained in the deeds of E. A. Horne and Amelia Horne each to the other, constitute a covenant running with the land? The agreement in the deed dated May 27, 1892, from Amelia Horne to E. A. Horne, is as follows:
At the same time E. A. Horne executed a deed to Amelia Horne, in which the agreement was set out as follows:
Both of these deeds were duly executed, and were recorded on June 18, 1892. Afterwards, on May 11, 1911, Amelia Horne executed a warranty deed to her lot of land to the Macon Telegraph Publishing Company, a bond for title, which was recorded, having previously been executed on November 14, 1910. On February 3, 1911, E. A. Horne, executed a deed, which was duly recorded, to his lot of land to A. R. Willingham, "together with an easement in the division wall." On March 4, 1911, A. R. Willingham conveyed by deed, which was duly recorded, the E. A. Horne lot to Jesse H. Hall, "together with an easement in the division wall." W. T. Anderson testified on the trial that he was the general manager of the Macon Telegraph Publishing Company, which erected a building in the fall of 1910 and spring of 1911 on the lot which it bought from Miss Amelia Horne. The wall between the two lots was commenced on December 2, 1910, and finished some time after June 1, 1911. E. A. Horne was asked to participate in the building of the wall, but refused to do so, or to pay any portion of the expense, and before the completion of the wall sold his lot to Willingham, and Willingham sold to Hall. No part of the expense of building the wall has been paid by Horne, Willingham, or Hall. The total expense of building the wall was $2,450, according to the testimony of the contractor. There was evidence tending to show that Horne, Willingham, and Hall used the party wall before it was completed.
It is insisted that even if the party-wall agreement constitutes a covenant running with the land, it only binds him who owns the lot contiguous to the builder at the time the wall is actually built; and, in the absence of an express contract to pay upon use of the wall, that such an agreement would not be a charge or lien upon the land in the possession and ownership of a subsequent assignee. Whatever the decisions of the courts of other jurisdictions may be on this question (and they are conflicting), such is not the law in this state. By Civil Code 1910, § 4192, it is provided that:
"The purchaser of lands obtains with the title, however conveyed to him, at public or private sale, all the rights which any former owner of the land, under whom he claims, may have had by virtue of any covenants of warranty of title, or of quiet enjoyment, or of freedom from incumbrances, contained in the conveyance from any former grantor, unless...
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