Hutchens v. Seaboard Air-Line Railway

Evans, P. J. (After stating the foregoing facts.) 1. The petition as originally drafted purported to set forth a cause of action for a breach of a contemporaneous verbal contract imposing conditions upon a deed which the plaintiffs’ ancestor made to the defendant. The deed executed by Mrs. Dever was a conveyance in fee simple to certain described land. In her deed she also conveyed additional privileges appurtenant to the land conveyed. The rule is elementary that parol conditions can not be engrafted upon a deed. There is no pretense that any fraud was practiced by the railroad company upon the grantor, nor is it alleged that any term of the agreement respecting the sale of the land was omitted from the deed by accident, fraud, or mistake. The plaintiffs’ alleged cause of action is based, solely upon the ground of the breach of a contemporaneous parol agreement with respect to certain rights which it is alleged she was to have in the premises conveyed. Thére was an allegation in the petition of a continuous violation of the parol agreement respecting the construction of the railroad-bed and the maintenance of the crossings, which was a continuing nuisance; but this allegation, construed with its context, related to the quantum of damages. The allegations were lacking in definite statement to even hint at a liability in tort for any trespass. A grantor of land to a railway company can not dispute the terms of his deed, or engraft upon it conditions not in the writing. Cook v. North & South R. Co., 50 Ga. 211; Burch v. Augusta &c. R. Co., 80 Ga. 296 (4 S. E. 850); L. & N. Railroad Co. v. Holland, 132 Ga. 173 (63 S. E. 898); Lee v. Savannah & Statesboro Ry. Co., 115 Ga. 64 (41 S. E. 246); L. & N. Railroad Co. v. Willbanks, 133 Ga. 15 (65 S. E. 86, 24 L. R. A. (N. S.) 374, 17 Ann. Cas. 860); Murray County v. Wilson, 140 Ga. 689 (79 S. E. 783). 2. The matters alleged in the amendment attempted to set forth a cause of action sounding in tort, and a recovery of damages to the land was sought by reason of so defective a construction of the roadbed as to injure the plaintiffs’ premises, by ponding water upon them, and by rendering them practically inaccessible of approach to the market town. The cause of action set forth in the amendment essentially sounds in tort, and such a cause of action can not be joined, in a case of this character, with an action based on contract. Croghan v. New York Underwriters’ Agency, 53 Ga. [316] 109; Teem v. Ellijay, 89 Ga. 154 (15 S. E. 33); Sharpe v. Columbus Iron Works, 136 Ga. 483 (71 S. E. 787). Judgment affirmed. All the Justices concur, except Beck, J., absent.