The Howard Mfg. Co. v. The Water Lot Co.

• Decision Date: 31 January 1875
• Citation: The Howard Mfg. Co. v. The Water Lot Co., 53 Ga. 689 (Ga. 1875)
• Parties: The Howard Manufacturing Company et al., plaintiffs in error. v. The Water Lot Company, defendant in error.
• Court: Georgia Supreme Court

53 Ga. 689

The Howard Manufacturing Company et al., plaintiffs in error. v. The Water Lot Company, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

Covenants. Land. Title. Equity. Exhibits. Before Judge James Johnson. Muscogee Superior Court. November Term, 1874.

For the facts, see the decision.

R. J. Moses; BeandfoRd & Garraed, for plaintiffs in error.

H. L. Benning, for defendant.

Warner, Chief Justice.

It appears from the record in this case that on the 13th December, 1859, Van Leonard, trustee of the Howard Manufacturing *Company, recovered a judgment in the superior court of Muscogee county v. the Water Lot Company, for breach of covenant—damages, $3,033 00 and costs. An execution was issued on this judgment on 18th September, 1867, and the present bill was filed to enjoin its collection on 21st December, 1868.

On the 23d June, 1873, Jesse J. Bradford, trustee, was made a party in place of Van Leonard, trustee, deceased.

On the 21st May, 1871, defendant filed a demurrer, and on the same day filed a plea setting forth that the suit on which said judgment was founded had been transferred by the Howard Manufacturing Company to R. J. Moses, for the benefit of divers judgment creditors of said company, amounting to $11,000 00, and that the proceeds collected upon said judgment were to be paid pro rata to said creditors, less one-fourth the amount of the same, which was to be retained by him for his fees. This assignment was made in 1854. The court overruled this plea, but directed that R. J. Moses should be made a party, which was done, and the bill amended June 23d, 1873.

At the November term, 1874, defendant moved to dismiss the bill for want of equity and on the special ground of demurrer filed at May term, 1871.

The court overruled the demurrer on both grounds, and this is assigned for error.

The following are the grounds of equity set forth in the bill: That the Water Lot Company, July 9th, 1847, conveyed by deed to Van Leonard, as trustee of the Howard Manufacturing Company, water lot eleven, containing the following covenants—the deed is set forth, and after conveying the property for $5,000 00, contains this clause:

"And it is agreed and understood between the parties that this grant is subject to the following conditions and restrictions, to-wit: That the building which may be erected by the said Van Leonard, trustee, his heirs or assigns, on said lot number eleven, shall be fire-proof inside, and shall be equi-distant from the north and south lines of said lot; shall *not exceed fifty feet in width, so that there shall be an open space of eleven feet between the walls of the building and the boundary lines.

"And further: That the said lot in the hands of the said Van Leonard, trustee, as foresaid, or his heirs or assigns, shall be and is hereby made permanently chargeable with one-nineteenth part of the expense of repairing the dam across said Chattahoochee river and said canal reservoir.

"And the said Water Lot Company hereby covenants with the said Van Leonard, trustee, as aforesaid, his heirs and assigns, that they will not bargain or sell any of their lots undisposed of except upon condition that the buildings which may be erected shall be equi-distant from the boundary lines as hereinbefore expressed; and further, that the said Van Leonard, trustee, aforesaid, his heirs and assigns, shall be entitled to use the water commanded by said dam and said canal or reservior, in proportion to the number of lots in said survey now improved, or which may be hereafter improved, and when all of said lots—nineteen in number—shall be improved, the said Van Leonard, trustee, his heirs and assigns, shall be entitled to use one-nineteenth part of all the said water commanded by said dam and canal, which water shall be taken from said canal and conducted across the water passage in flumes or aqueducts in such manner as not to impede or obstruct the passage of the water through the said water-way from the machinery above said lot eleven."

There are further covenants not to allow any buildings erected than such Van Leonard is permitted to erect.

The habendum is to Van Leonard, in trust for the stockholders of the Howard Manufacturing Company, their heirs and assigns, forever.

The deed is signed:

"John H. Howard, President.

"John B. Baird,

[l. s.] "W. L. Jeter,

"Farish Carter, Directors."

*The bill further...