Opinion
25553.
ARGUED DECEMBER 9, 1969.
DECIDED JANUARY 8, 1970.
Equitable petition. DeKalb Superior Court. Before Judge Thibadeau.
Hendon Henley, J. W. Moulton, E. T. Hendon, Jr., for appellants.
Michael A. Doyle, for appellees.
An agreement restricting the use of real estate not resulting from "privity of estate" is not a covenant running with the land but a personal obligation of the parties not binding upon their assignees.
ARGUED DECEMBER 9, 1969 — DECIDED JANUARY 8, 1970.
Joseph E. Johnson, David E. Datry and David D. Nelson filed a petition against named defendants in which they sought a declaratory judgment as to the effect of a written contract which on its face restricted the use of certain property owned by the plaintiffs. The contract was entered into between Johnson and Datry as owners of the property and the defendants as owners of adjoining property. For a consideration of $10, support of a rezoning petition and "other good and valuable consideration" Johnson and Datry signed an agreement placing seven restrictions on the property including such things as the number of dwellings that could be built on the acreage, the price and size of such dwellings, an agreement never to use a part of the property except as a "buffer zone" and an agreement never to use any dwelling or improvement for rental purposes.
After the contract was entered into Johnson and Datry sold a one-third undivided interest in the property to the third plaintiff, Nelson.
The petition was filed in four courts and sought to have the rights of the parties declared, the "covenants" declared null and void, and prayed for such other and further relief as the plaintiffs may be entitled to.
The defendants filed defensive pleadings including a motion to dismiss the plaintiffs' petition as failing to state a claim. These motions were overruled as well as an oral motion for a summary judgment by the plaintiffs.
Thereafter the plaintiff Nelson filed a written motion for summary judgment supported by his affidavit. A similar motion was filed by the plaintiffs Johnson and Datry. These motions were overruled on April 3, 1969. On the call of the case for trial and after a jury was empaneled, the trial court sustained the defendants' oral motion to dismiss and dismissed the plaintiffs' petition with prejudice. The appeal is from such final judgment and error is enumerated thereon, as well as the judgment denying the plaintiffs' motions for summary judgment.
1. The appellants' enumerations of error were filed within the proper time and the motion to dismiss is overruled.
2. The appellants filed a certified transcript of the proceedings which occurred on the trial of the case and specified in the notice of appeal that "all pleadings, motions, orders, briefs, affidavits, etc., be included in the record on appeal." The trial court has, since the record was originally filed in this court, transmitted the depositions referred to in the appellees' motion and certified that they were inadvertently omitted from the original transcript. Thus, the contention that the appeal be affirmed because certain papers apparently relied upon by the trial court in finally disposing of the case were not specified for inclusion in the record on appeal is without merit as all papers on file at the time the final judgment was rendered have been forwarded to this court and their original exclusion was not the fault of the appellants.
3. Pretermitting the alleged procedural errors enumerated, the real question involved is the effect of the paper denominated a "covenant running with the land."
This "contract" was not part of a conveyance of any interest in the land. The covenants were not real but personal and were collateral to the land. There was no privity of estate between the covenantors and the defendants. The defendants never owned the acreage or bought or sold any interest in it, which is necessary in order to create a covenant running with the land. Compare Waycross Air Line R. Co. v. Southern Pine Co., 115 Ga. 7 ( 41 S.E. 271); Henderson Lumber Co. v. Waycross c. R. Co., 148 Ga. 69, 75 ( 96 S.E. 263).
"Necessity of Privity of Estate. Privity of estate ordinarily is essential in order that a covenant may run with the land. Ordinarily, a covenant may run with the land only when there is a subsisting privity of estate between the covenantor and covenantee, that is, when the land itself, or some estate or interest therein, even though less than the entire title, to which the covenant may attach as its vehicle of conveyance, is transferred; and, if there is no privity of estate between the contracting parties, the assignee will not be bound by, nor have the benefit of, any covenants between the contracting parties, notwithstanding they relate to the land which he takes by purchase or assignment from one of the parties to the contract. The covenant of a stranger to the title is incapable of transmission by a mere conveyance of the land. Particularly is privity of estate essential in the case of covenants imposing burdens, although such privity may not be required in the case of covenants conferring benefits." 21 CJS 925, Covenants, § 58.
While privity of estate has been held not necessary in order to create what amounts to a covenant running with the land (see 20 AmJur2d 727, Covenants, § 168), and it has been said that such cases rest upon "privity of conscience" ( Rosen v. Wolff, 152 Ga. 578 ( 110 S.E. 877)), yet in no case cited by either the appellants or appellees has an agreement not involving the grant of some estate in the realty been enforced against an assignee. As was held in Grant-Jeter Co. v. American Real Estate Co., 159 Ga. 80, 83 ( 125 S.E. 73): "To constitute a covenant running with the land, there must first be an interest or estate therein granted, the covenant must relate to the interest or estate granted, and the act to be done must concern the interest created or title conveyed. If the covenant is of a collateral nature to the land, and is incapable in law of attaching to the interest or estate granted, it is a personal obligation, and will not bind or pass to assignees, even where they are expressly named. Howard Mfg. Co. v. Water Lot Co., 53 Ga. 689; Atlanta c. R. Co. v. Jackson, 108 Ga. 634 ( 34 S.E. 184); Muscogee Mfg. Co. v. Eagle Phenix Mills, 126 Ga. 210 ( 54 S.E. 1028, 7 LRA (NS) 1139)."
Accordingly, the contract in the present case was not a covenant running with the land but a personal contract between the parties which would not bind their assignees, and the judgment of the trial court dismissing the plaintiffs' petition with prejudice was of necessity error.
4. Inasmuch as the prayers of the plaintiffs' petition sought a declaration that the contract was null and void as well as other relief and since such contract was not null and void as to the parties thereto, it was not error to overrule the plaintiffs' motions for summary judgment since their motions were not limited but were motions which, if granted, would have granted all the relief prayed for and not just the partial relief to which they were entitled.
Judgment affirmed in part; reversed in part. All the Justices concur.