O.C.G.A. § 44-6-106 (2019)

Annotations

JUDICIAL DECISIONS Whether covenants dependent determined by consideration and parties’ intent. - Promises which are mutual to the extent that each affords the sole consideration to the other will not be construed as independent, but will, in the absence of clear indications to the contrary, be taken as dependent one upon the other and, while ordinarily dependent covenants are such as mutually afford to the other the whole consideration, the stipulations and circumstances of the contract may be such as to render covenants mutual and dependent even though one of them affords to the other only a part of its consideration. In such a case, the question as to whether covenants shall be taken as mutually dependent is to be determined by reference to the rational meaning and intent of the parties as disclosed by the entire instrument, read in the light of the surrounding circumstances and the purposes for which the contract as a whole was made. Schmidt v. Mitchell, 117 Ga. 6, 43 S.E. 371 (1903); Brenard Mfg. Co. v. Kingston Supply Co., 22 Ga. App. 280, 95 S.E. 1028 (1918).

Covenants construed as independent. - Landlord leased certain stores to tenants at a stipulated price, payable monthly. The landlord agreed to keep the building in good repair and to pay the tenants any damage the tenants might sustain by the landlord’s neglect to do so. The covenant to pay rent and that to repair were independent covenants, and a failure to repair did not work a forfeiture of the rent, but gave a right of action or of recoupment to the tenant. Lewis & Co. v. Chisolm, 68 Ga. 40 (1881). Covenants in a contract whereby A agreed to convey to B all the timber on certain lands for turpentine purposes, and whereby B agreed to convey to A all the timber on certain other lands for sawmill purposes, were independent covenants. Howell & Rawls v. James Lumber Co., 102 Ga. 595, 27 S.E. 699 (1897). Cited in McRae v. Sewell, 47 Ga. App. 290, 170 S.E. 315 (1933); Fulford v. Fulford, 225 Ga. 9, 165 S.E.2d 848 (1969).

RESEARCH REFERENCES Am. Jur. 2d. - 20 Am. Jur. 2d, Covenants, Conditions, and Restrictions, § 10 et seq. 28 Am. Jur. 2d, Estates, § 144 et seq. C.J.S. - 26A C.J.S., Deeds, §§ 273, 304 et seq., 315, 316, 319, 322, 326, 345 et seq. 31

C.J.S., Estates, § 21 et seq. 96 C.J.S., Wills, § 1408 et seq. ALR. - Restraint upon voluntary alienation of legal life estate, 160 ALR 639.

ARTICLE 7 TENANCY IN COMMON Cross references. - Right of tenant in common to bring action separately for his own interest, and effect of judgment in such action, § 9-2-23.

Law reviews. - For article discussing provisions pertaining to the regulation of time shared interests in property ownership, see 12 Ga. St. B.J. 75 (1975).

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Part 1 In General Law reviews. - For article analyzing legal aspects of time shared (multiple, revolving) ownership of property, see 12 Ga. St. B.J. 75 (1975). For article surveying Georgia cases

in the area of real property from June 1977 through May 1978, see 30 Mercer L. Rev. 167 (1978).

JUDICIAL DECISIONS Tenant in common cannot bring complaint to oust cotenant. - Complaint having for the complaint’s object the ousting of a tenant in common from that tenant’s inter-

est in property is not maintainable by a cotenant. Ison v. Geiger, 179 Ga. 798, 177 S.E. 596 (1934).

RESEARCH REFERENCES ALR. - Adjustment on partition of improvements made by tenant in common, 1 ALR 1189; 122 ALR 234. Right of judgment creditor of cotenant to maintain partition, 25 ALR 105. Rights of cotenants inter se as to oil and gas, 40 ALR 1400; 91 ALR 205. Gift or trust by deposit of funds belonging to the depositor in a bank account in the name of himself and another, 48 ALR 189; 127 ALR 602; 169 ALR 207. Contribution or allowance as between cotenants in remainder as affected by fact that one or more of them owns, or did own, the life estate or an interest therein, 98 ALR 859. Validity of provision in deed or other instrument creating a cotenancy that neither tenant shall encumber or dispose of his interest without consent of the other, 124 ALR 222. Character of conveyance or conveyances necessary to create an estate by entirety, 132 ALR 630; 173 ALR 1216; 44 ALR2d 595. Married Women’s Act as abolishing estates by entireties, 141 ALR 179. Right of spouse of cotenant to acquire and hold title adversely to other cotenants, 153 ALR 678. Contract to sell land not signed by all of co-owners as operative to cover interests of the signers, 154 ALR 767. Mental incompetency of one spouse as affecting transfer or encumbrance of community property, homestead property, or estate by the entireties, 155 ALR 306.

Right of survivor of parties to bank account in their joint names as affected by provision excluding his right of withdrawal during the lifetime of the other party, 155 ALR 1084. Purchase of cotenant’s interest at judicial sale as making purchaser cotenant, 159 ALR 395. Estate created by conveyance to husband and wife as affected by language used in deed, 161 ALR 457. Interest of spouse in estate by entireties as subject to satisfaction of his or her individual debt, 166 ALR 969; 75 ALR2d 1172. Privity between cotenants for purposes of doctrine of res judicata, 169 ALR 179. Basis of computation of cotenant’s accountability for minerals and timber removed from the property, 5 ALR2d 1368. Rights of one entitled to contribution to recover interest, 27 ALR2d 1268. Rights and incidents where title to real property purchased with wife’s funds is taken in spouses’ joint names, 43 ALR2d 917. Contribution, subrogation, and similar rights, as between cotenants, where one pays the other’s share of sum owing on mortgage or other lien, 48 ALR2d 1305. Enforcement of, or waiver of, or estoppel to assert, forfeiture clause of lease made or held by cotenants as lessors, 50 ALR2d 1365. What acts by one or more of joint tenants will sever or terminate the tenancy, 64 ALR2d 918; 39 ALR4th 1068. Real estate mortgage executed by one of

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joint tenants as enforceable after his death, 67 ALR2d 999. Right of surviving spouse to contribution, exoneration, or other reimbursement out of decedent’s estate respecting liens on estate by entirety or joint tenancy, 76 ALR2d 1004. Grant of part of cotenancy land, taken from less than all cotenants, as subject of protection through partition, 77 ALR2d 1376. Rights in proceeds of insurance on property held jointly with right of survivorship, where one of joint owners dies pending payment of proceeds, 4 ALR3d 427.

Valuation of wearing apparel or household goods kept by owner for personal use, in action for loss or conversion of, or injury to, such property, 34 ALR3d 816. Guardian’s position as joint tenant of or successor to property in ward’s estate as raising conflict of interest, 69 ALR3d 1198. Contract of sale or granting of option to purchase, to third party, by both or all of joint tenants or tenants by entirety as severing or terminating tenancy, 39 ALR4th 1068.