Willcox v. Kehoe

• Decision Date: 21 December 1905
• Citation: 52 S.E. 896,124 Ga. 484
• Parties: WILLCOX et al. v. KEHOE.
• Court: Georgia Supreme Court

52 S.E. 896

124 Ga. 484

WILLCOX et al. v. KEHOE.

Supreme Court of Georgia

December 21, 1905

Syllabus by the Court.

A covenant in a lease, whereby the lessor expressly stipulates that he will not be bound to make repairs, alterations additions, or improvements upon the leased premises, but agrees that the lessee, at his option, may make such repairs etc., as shall be necessary, and that he will reimburse him therefor to an amount named, is a personal obligation on the part of the original lessor, and does not run with the reversion, so as to bind an assignee thereof.

One who buys land subject to a lease containing a covenant of the character indicated in the preceding note is not bound for the breach of the purely personal covenant of his predecessor, made prior to the sale of the land to him.

Error from City Court of Savannah; T. M. Norwood, Judge.

Action by William Kehoe against C. H. Willcox and others. Judgment for plaintiff, and defendants bring error. Affirmed.

R. R Richards and Peeples & Jordan, for plaintiffs in error.

O'Connor O'Byrne & Hartridge, for defendant in error.

CANDLER J.

The Domestic Coal & Wood Company, a firm composed of Willcox and Salas, leased from Harriet C. Jones and others a wharf lot in the city of Savannah for the term of three years and four months; the date of the lease being May 29, 1901. The plaintiffs in error are a partnership doing business under the name of the Standard Fuel Supply Company, and are successors in business to the Domestic Coal & Wood Company. One of the conditions of the lease referred to was as follows: "It is covenanted and agreed by and between the parties of these presents, that the said [lessees] shall take and occupy the said property as it stands at the beginning of this lease, and that the said [lessors] shall not be called upon or be responsible for any additions, alterations, improvements, or repairs upon the said leased property, or any part thereof, or for any dredging or increased depth of the water along said wharf front, and that all such additions, improvements, repairs, or dredging shall be made by the [lessees] at their option and at their own expense. But said [lessors] hereby covenant and agree to reimburse and to pay to the said [lessees] for any necessary repairs, improvements, or dredging made or done by them a sum not to exceed in the aggregate during the term of said lease twelve hundred dollars ($1,200), to be paid to said [lessees] at the time or times when said repairs or dredging is completed and payment for the same becomes due." The instrument contained various other covenants which are not material to this discussion. Only one of the covenants of the lease is expressly made applicable to the successors or assigns of either party, viz., a stipulation that, in the event of default in the payment of rent, the lessors, "their successors or assigns," shall have the right to re-enter and terminate the lease. During the years 1901 and 1902 the original lessees and their successors, the plaintiffs in error, expended for necessary repairs on the leased premises a sum in excess of the $1,200 provided by the clause of the contract which has been quoted. Of this amount $802.30 was reimbursed to the original lessees, presumably at the time the repairs were made. The remainder, $397.70, has never been reimbursed, though demand for same has been made. In April, 1905, Kehoe, the defendant in error, purchased the wharf lot, and after the expiration of the lease brought suit against the lessees for an amount alleged to be due for three months' rent of the premises. The defendants filed a plea, in which they sought to recoup against the plaintiff's claim for rent the difference of $397.70 between the amount that has been paid to them and their predecessors by way of reimbursement for repairs made and the amount of $1,200 provided for by the covenant to reimburse, which has already been set out. On motion of counsel for the plaintiff the plea of recoupment was stricken as insufficient in law, and the defendants excepted. It will be seen that two controlling questions are presented for decision, viz.: Was the covenant to reimburse one which ran with the land, or a merely personal obligation on the part of the original lessors; and, if it was not a covenant running with the land, was Kehoe, who bought subject to the lease, bound by its terms to the extent that he will be held liable for the previous breach of the covenant by his predecessor in title?

1. At common law a distinction was drawn between the land--i. e the right to the possession of leased premises and the reversion, or the right to the estate after the expiration of the lease; and it seems that "covenants ran with the land, but not with the reversion. Therefore the assignee of the lessee was held to be liable in covenant and to be entitled to bring covenant, but the assignee of the lessor was not." See note to Spencer's Case, 5 Rep. 16, 1 Smith's L. C. (9th Am. Ed.) 180, citing Thursby v. Plant, 1 Wms. Saund. 300, n. 10, and Butler v. Archer, 12 Irish C. L. 104. To remedy this inequality the statute of 32 Henry VIII, c. 34, was passed, whereby it was enacted, in effect, that assignees of lessors should "have like advantage against the lessees, their executors, administrators, and assigns, by entry, for nonpayment of the rent, or for doing waste or other forfeitures, and by action only, for not performing other conditions, covenants, or agreements, expressed in the indentures of leases, *** as the said lessors and grantors, their heirs or successors, might have had," and that "all lessees and grantees of lands, *** their executors, administrators, or assigns, shall have like action and...