Russell v. Napier

• Decision Date: 31 October 1887
• Citation: 80 Ga. 77
• Parties: Russell. vs. Napier.
• Court: Georgia Supreme Court

80 Ga. 77

Russell. vs. Napier.

Supreme Court of the State of Georgia

OCTOBER TERM, 1887.

Vendor and purchaser. Equity. Specific performance. Injunction. Private ways. Nuisance. Before Judge Fain. Catoosa superior court. August term, 1887.

Reported in the decision.

W. H. Payne, by brief, for plaintiff.

R. J. McCamy and James Hunt, for defendant.

Blandford, Justice.

Russell exhibited his bill in the superior court against Napier, in which he alleged that he had bought a certain tract of land from the defendant, also a right of way leading from this tract to a public road through other lands of the defendant, and that he paid for it and went into possesion of it; that Napier tendered him a deed after he had made payment for the land, and that he discovered that the deed was as to the land alone, and said nothing as to the right of way, whereupon he refused to accept it; that Napier thereupon stated to him that if he would accept this deed, he would make him another deed to the right of way; that he accepted the deed to the land, but that Napier refused to make him afterwards a deed to the right of way. The bill asks for specific performance, and prays that Napier be required to perform his contract to execute a deed to this right of way. It also prays that Napier be prohibited from interferring with the complainant's use of the right of way, it being alleged that Napier had stopped up the same.

To this bill a demurer was filed for want of equity, and the court below sustained the demurrer; and to that ruling the complainant in the bill excepted, and brings the case here for our consideration.

1. We think that the court erred in dismissing this bill, for several reasons. We think that, the plaintiff having accepted the deed to the land, the deed not containing anything as to the right of way, and having accepted it upon an agreement on the part of the defendant, that the defendant would afterwards make him a deed to the right of way, this agreement was in itself a good contract; one contract is a good consideration for another contract; and on that ground a specific performance might be decreed, under the facts alleged in the bill.

2. But it is insisted by the defendant in error that it was too late to ask for specific performance, more than four years having elapsed since this transaction. The plaintiff inerror, at the time of his purchase, went immediately into possession of the land and the right of way, and has been in possession for the last seven...