
    READ v. GOULD.
    Tlie petition stated a cause of action, and should not have been dismissed upon general demurrer.
    May 11, 1910.
    Complaint. Before Judge Felton. Bibb superior court.
    May 3, 1909.
    Mrs. Mary J. Eead brought suit against E. W. Gould, and alleged that he was indebted to her in the sum of $400. She averred that on or about June 6, 1904, she sold to him certain lands, and that as a part of the consideration for the sale he agreed to allow her hunting, fishing, and pasturage privileges on the lands, or, in default thereof, to pay her $400 in addition to the price already paid for the land. The agreement referred to was embodied in á writing dated June 6, 1904, signed by the defendant, in which it was stipulated that in consideration of the sale of the lands, describing them, Mary J. Eead should have the right to pasture upon said lands during her life for not exceeding twenty head of cattle and sixty head of hogs; and that if the defendant, his heirs or assigns, should at any time choose to do so, he should have the right to terminate the agreement as to pasturage and hunting privileges, upon the payment to the plaintiff of the sum of $400 in addition to the purchase-price of said 'lands. The petition contains the further averments, that on or about February 4, 1908, the defendant sold the lands to Mrs. Ophelia Phillips; that the deed conveying the lands to Mrs. Phillips conveyed in express terms the right to pasturage and hunting on said lands; that since the sale of the lands by the defendant to Mrs. Phillips, petitioner has attempted to exercise the right of pasturage and hunting thereon, and has been denied the right by Mrs. Phillips; and that by reason of the foregoing facts the defendant has elected to terminate the rights of petitioner as to pasturage, etc., and petitioner prays judgment in the sum of $400. A general demurrer to the petition was sustained, and the petitioner excepted.
    
      R. S. Wimberly, for plaintiff.
    
      L. D. Moore, for defendant.
   Beck, J.

(After stating the facts.) The deed from petitioner to defendant, conveying the lands in question, is not set forth in full or in substance in the petition, nor is it exhibited. The sale of the lands by petitioner to defendant is alleged to have been made on or about the 6th day of June, 1904; the date of the agreement is June 6, 1904; and it is impossible for this court to determine from the meager averments of the petition whether the written agreement signed by the defendant, touching the rights of pasturage, etc., was executed prior to the deed, and merged in the deed executed subsequently, or whether the written agreement was executed subsequently to the deed conveying the lands in fee simple, without reservation or exception. But, construing the petition -and the agreement executed by the defendant in the light of the meager averments of the petition, and the language of the agreement itself reciting that the granting of the right to pasturage upon the lands and the privilege of hunting and fishing thereon was a part of the consideration for the sale of the lands, in the absence of special demurrer calling for a more specific statement of the terms of the conveyance of the lands to the defendant and as to the relative time of the execution of that conveyance and the instrument in writing, referred to as an agreement in the petition, we take it that the two papers were executed simultaneously and are to be construed as parts of one and the same transaction, and do so construe them, though the facts of the case as they may appear upon the trial may require an entirely different construction. Thus construing the written agreement signed by the defendant, we think the petition was good as against a general demurrer. Considered as a whole, the defendant undertook to pay to the plaintiff the sum of $400 whenever he should “terminate this agreement” relative to the rights and privileges of the petitioner as to pasturage and hunting upon said lands; and when he sold the lands to a third person and expressly conveyed the rights of pasturage and hunting, generally and without limitation, he will not be heard to say that he has not brought about the contingency upon the happening of which the $400 was to become due to petitioner. Petitioner has herself, by filing this suit, elected to treat her rights and privileges of pasturage and hunting upon the lands as terminated and extinguished; and we are of the opinion that the amount of $400, which the defendant obligated himself to pay upon the termination of the rights and privileges referred to, is due, and that plaintiff is entitled to a judgment therefor, unless other facts not appearing upon the face of the petition, affecting or destroying the validity of the binding-effect of the agreement signed by the defendant, should appear upon the trial.

Judgment reversed.

All the Justices concur.  