Nelson v. Atlanta, K. & N. Ry. Co.

• Decision Date: 10 January 1911
• Citation: 69 S.E. 1118,135 Ga. 572
• Parties: NELSON v. ATLANTA, K. & N. RY. CO. et al. ATLANTA, K. & N. RY. CO. et al. v. NELSON.
• Court: Georgia Supreme Court

69 S.E. 1118

135 Ga. 572

NELSON v. ATLANTA, K. & N. RY. CO. et al.

ATLANTA, K. & N. RY. CO. et al. v. NELSON.

Supreme Court of Georgia

January 10, 1911

Syllabus by the Court.

A railroad company made to an owner of land lying near tracks used by it a written proposition to purchase a strip of such land "on the following terms, covenants, and conditions," setting out that the strip was to be used in connection with other property, in a general plan for railroad terminals, and agreements as to erecting a wall moving a public street, not using certain land for stated purposes, etc. It provided: "The covenants and agreements herein stated to be incorporated in the deed to said property, so as to run with the land sold." The proposition was accepted in writing. Later the purchaser assigned its rights to another company, and the seller, on receipt of the purchase price, made to such assignee a deed in which were included the covenants and agreements of the contract. Held, that the contract was merged into the deed, and could not thereafter be enforced against the original purchaser, as containing personal covenants.

If there was inserted in the deed to the assignee a provision that the covenants could not be enforced, except upon a certain contingency, an equitable petition seeking specific performance against the grantee in the deed, or one holding under it, without alleging the happening of the condition precedent, was subject to demurrer.

The petition for specific performance was demurrable, and there was no error in dismissing it.

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by C. N. Nelson, Bishop, and others, against the Atlanta Knoxville & Northern Railway Company. Judgment of dismissal, and plaintiffs bring error; defendant filing cross-exceptions. Affirmed on main bill of exceptions, and cross-bill dismissed.

Where a railroad company contracted in writing with the owner of land for its purchase, on certain covenants and conditions, providing that such covenants and conditions should be incorporated in the deed to the property, so as to run with the land, and the purchaser assigned its rights to another company, and the vendor, on receipt of the price made a deed thereof to such assignee, which included the covenants and conditions, the contract was merged into the deed and could not thereafter be enforced against the original purchaser, as containing personal covenants.

C. K. Nelson, as bishop of the diocese of Atlanta, and as such successor to the bishop of the Protestant Episcopal Church in the diocese of Georgia, and trustee of the Protestant Episcopal Church in the diocese of Atlanta, and trustee for St. Philips parish, filed an equitable petition against the Atlanta, Knoxville & Northern Railway Company, alleged to be a Georgia corporation, the Louisville Property Company, alleged to be a Kentucky corporation, and the Louisville & Nashville Railroad Company, alleged to be a corporation of Kentucky, but also a common carrier in the state of Georgia and in the city of Atlanta. He alleged substantially as follows:

On February 20, 1904, the plaintiff and the Atlanta, Knoxville & Northern Railway Company entered into the following contract: "The Atlanta, Knoxville & Northern Railway Company (hereinafter called the 'railroad') hereby proposes to Right Rev. C. K. Nelson, Bishop of Georgia, and as such trustee for the use of the Protestant Episcopal Church in the diocese of Georgia, and also trustee for St. Philips parish (hereinafter called 'trustee') to purchase the following described property, to wit: Commencing on the easterly side of Washington street, at the point where the city fire department property corners with the church property on Washington street; running thence southerly on the eastern side of Washington street, not less than twenty-four (24) feet; thence easterly, on parallel lines to the property of the Georgia Railroad, so that the north line of the church property shall be a continuation of the north line at Waverly Place, the same being a strip not less than twenty-four (24) feet wide, nor more than twenty-seven (27) feet wide, off the northerly end of the church property, adjoining the fire department property, as may be needed by said railway company, and being part of land lot seventy-seven (77) in the Fourteenth district of Fulton county, Georgia--on the following terms, covenants, and conditions, to wit: (1) The trustee to have the right to remove all that part of the chapel or Sunday school building which stands on said strip of land. (2) The property so to be purchased to be used (in connection with other property owned or controlled by the railroad) for railroad purposes in a comprehensive plan for the freight terminals, substantially shown by a ground plan, blue print of which is exhibited herewith. This plan contemplates the relocation of Waverly Place approximately ninety (90) feet south of its present location so as to make its north projected line coincident with the south line of the strip of land hereinbefore described. (3) The price to be paid for said property to be eighteen thousand dollars ($18,000.00), which sum is to cover the value of the strip actually appropriated to railroad uses, and all easements and rights in the streets and sidewalks on which it abuts, and also all damages to the residue of said church lot resulting from the establishment and operation of freight terminals as proposed and shown by said blue print. The consequential damages herein referred to are not to include any damages or claim for damages to the residue of the property vested in the trustee and his successors, which may be caused by the construction of approaches to a viaduct over the tracks and yards of the railroads for the purpose of extending Washington street northward. All claims for any such damages shall be unprejudiced by this deal and purchase. (4) Waverly Place, 'as relocated,' to be sixty (60) feet wide, with ten (10) foot sidewalks on each side; the roadway to be paved with asphalt, and the sidewalks paved and curbed as in the present street. The north boundary of said street shall be separated from the proposed railroad yards by masonry retaining wall surmounted with suitable iron guard railing fence. (5) The lots fronting on south side of Waverly Place, as relocated, are never to be used by said railroad or its successors or assigns for railroad purposes, either tracks, yards, or warehouser so long as the trustee or his successors utilize the residue of said church property for church purposes. (6) The roundhouse situated on the Georgia Railroad near said church property to be removed within one year from the vicinity of said property, as a part of the changes in said road yard. (7) The trustee to file proper petition to the superior court of Fulton county, praying for all necessary orders of the judge and chancellor of said court, to authorize him, us bishop and trustee as aforesaid, to execute fee-simple title deed conveying said property to said railroad company upon the payment of the sum offered; whereupon the trustee is to execute and deliver such deed and remove said building from the property conveyed. (8) Said sum of $18,000.00 to be paid by the railroad upon approval by its counsel of the title to said property and the proceedings authorizing said sale, and the making of said deed, and shall be made contemporaneously with the delivery of said deed. (9) The covenants and agreements herein stated to be incorporated in the deed to said property, so as to run with the land sold. (10) This proposition, on acceptance by the trustee, to constitute a contract."

The plaintiff in writing accepted "the foregoing proposition, subject to the approval of the court," which was obtained. The plaintiff, at the time of the execution of the contract, was the owner of a piece of land in Atlanta, of which the strip described in the contract was a part. The interest in the contract having been assigned by the railway company to the Louisville Property Company, the plaintiff, on April 7, 1904, conveyed to the latter company the land described in the contract, by deed recorded in the county records in a book and page mentioned, "which deed is hereby shown to the court." (The deed was not attached to the original petition.) By virtue of such deed the Louisville Property Company assumed and became bound for all the conditions of the contract above set out, which were incorporated in the deed; but the obligations of the railway company to the plaintiff still continued to exist notwithstanding the liability of the property company also to perform them. The Atlanta, Knoxville & Northern Railway Company has been consolidated and merged with the Louisville & Nashville Railway Company, and on account of the consolidation and merger the latter company "is liable for the covenants and obligations of said contract, and is now in possession of the land covered by said...