Atlanta Title & Trust Co. v. Davis , 36 Ga. App. 257 ( 1926 )

Jenkins, P. J.

Davis sued the Atlanta Title & Trust Company for damages alleged to have been sustained by reason of the failure of the defendant to report an existing incumbrance by way of an easement on certain property purchased by Davis in the city of Atlanta. It appears that Davis employed the defendant to exam-: ine the title to the property prior to his purchase thereof; that he purchased the property from Mrs. Sallie J. Foote, who held an unrecorded deed from Aaron Tenenbaum, and that the deed from Tenenbaum to Mrs. Foote was delivered by her to Davis and turned over to the defendant by Davis for its use in examining the title. This deed conveying the property to Mrs. Foote contained the following reservation: “This conveyance is made subject to an easement which grantor herein reserves to himself and his assigns, over the north strip of said described premises, no.w a driveway, and to be used as such for purpose of entering north lot adjoining this.” Tenenbaum had originally owned both the lot in question and the one adjoining it on the north. On June 2, 1920, he sold the north lot to another purchaser, making the following reservation: “This conveyance is made subject to easement heretofore reserved over the south strip of said premises, now a driveway, to be used as such for the purpose of entering lot adjoining this lot on the south. A similar easement reserved on the lot adjoining this lot on the south of a strip same width as herein reserved, the two said strips adjoining and comprising said driveway, now clearly marked out, being one half off of above lot, and one half off of adjoining lot adjoining this on the south. Same to be used as to both lots perpetually on ingress and egress, as a driveway for the benefit of both lots.” It appears from the evidence that there was a fence between the two lots, and that the driveway as used was entirely on the lot bought by Dávis. The defendant certified the title to Davis, making no exception of the easement, but excepting all questions of survey, and prepared on its form a deed from Mrs. Foote to Davis to the lot purchased, making no reference to the easement. It is contended by the defendant that the deed from Tenenbaum to the purchaser of the north lot created an easement in favor of the lot purchased by Davis in a driveway to be used on both lots, and that the court should have construed both deeds and fixed the location of the driveway, as a matter of law, as provided for by the deed made by Tenenbaum to the purchaser of the north lot.

The evidence for the plaintiff fixes the damage by reason of the location of the driveway on the lot purchased, at $1,500; while the evidence'for the defendant fixes the damage at a smaller sum.

Judgment affirmed.

Stephens and Bell, JJ., concur.