Robinson v. Perry , 21 Ga. 183 ( 1857 )

By the Court.

Benning, J.

delivering the opinion.

Was there equity in the bill ? If there was, the demurrer was properly overruled, for all the grounds of the demurrer are included in the one, that there was no equity in the bill.

There was equity in the bill, if the interest acquired by Philips from Robinson was assignable. And that it was assignable, there can be no doubt. The contract between Robinson and Philips contained no covenant, that Philips should not alien. The right of alienation therefore, was one of the incidents of the interest in the land acquired by Philips; and this right is an incident of leased property, which is to be defeated only by a very clear stipulation; Courts lean in favor of it See Comyn on Land, and Ten. 234, and cases cited.

A covenant to renew a lease, runs with the land, and the assignee of the lease may require a specific performance of it. Plat on Cov. 250. Therefore Philips’s right to purchase at the expiration of the five years, run with the land, and thus came to the complainants.

There was therefore equity in the bill.

The allegations in the bill with respect to the tender might well have been more particular and more certain. And one of the Court, (Judge McDonald,) thinks they should have been so.

But the demurrer does not make any special objection to them on this score, and it is not likely that their character was passed upon by the Court below. At all events, they are amendable. Therefore this Court decides nothing as to their sufficiency.

Nor does it decide anything, as to whether there are proper parties to the bill. That question was not made before the Court below.

The judgment of this Court merely is, that there was equity in the bill, and therefore, that the Court below was right in overruling a demurrer that was for want of equity.

Judgment affirmed.