No. 4176 | 5th Cir. | Oct 23, 1923
The appellees were appointed receivers in a suit to foreclose a mortgage. Pending foreclosure, the receivers filed an ancillary bill against appellants, who were not parties to the foreclosure suit, alleging that said appellants were trespassing upon four lots of land included in the mortgage by cutting fences, building tramroads, and cutting down and removing timber. A temporary restraining order was issued. Appellants filed an answer, in which they admitted the acts complained of, but defended upon the ground that they had title to the land. At this stage of the proceedings the property described in the ancillary bill was sold under a decree in the main suit. The court continued the receivers in office for the purpose, among others, of concluding their suit against appellants. At the hearing for an interlocutory injunction, the appellants moved to dismiss
It appears from -the evidence that the mortgagors had built a wire fence of two strands around three of the four lots in controversy, and had leased them to a tenant who lived within the inclosure, and who was using the land so inclosed as a pasture for his cattle.' Two lots of land not owned by the mortgagors were also within the inclosure. One of the lots described in the ancillary bill was not inclosed, and'appellants were not enjoined from exercising acts of ownership over it. We are of opinion that the foreclosure sale did not deprive the court of jurisdiction to determine the question of possession involved in the ancillary suit. The court had the right to put the purchaser into such possession as the receivers had, and the fact that the sale was made before the issue as to right of possession was decided did not deprive the court of jurisdiction. Terrell v. Allison, 21 Wall. 289" court="SCOTUS" date_filed="1875-03-29" href="https://app.midpage.ai/document/terrell-v-allison-89012?utm_source=webapp" opinion_id="89012">21 Wall. 289, 22 L. Ed. 634.
The question of title, raised by appellants, was not passed upon ; but, notwithstanding this, the court had the power to continue the injunction in force in order to prevent the defendant from cutting down and removing the timber on the land. Erhardt v. Boaro, 113 U.S. 527" court="SCOTUS" date_filed="1885-03-02" href="https://app.midpage.ai/document/erhardt-v-boaro-91309?utm_source=webapp" opinion_id="91309">113 U. S. 527, 5 Sup. Ct. 560, 28 L. Ed. 1113" court="SCOTUS" date_filed="1885-03-02" href="https://app.midpage.ai/document/erhardt-v-boaro-91309?utm_source=webapp" opinion_id="91309">28 L. Ed. 1113; 14 R. C. L. 451.
Upon the merits, it is conceded that actual possession of lands gives to the possessor sufficient interest to enjoin the cutting of timber, but it is contended that such possession is not disclosed by the evidence. Section 4165 of the Georgia Civil Code of 1910 provides:
“Actual possession of lands is evidenced by inclosure, cultivation, or any use and occupation thereof which is so' notorious as to attract the attention of every adverse claimant, and so exclusive as to prevent actual occupation by another.”
We think the evidence as to the character of the fence and the use of the lands by the tenant for pasturage purposes was sufficient to show actual possession. 1 R. C. E- 698. The fact that the indosure included some land which was not owned by the mortgagors does not, in our opinion, prevent the possession proved in this case from being adverse. Parker v. Newberry, 83 Tex. 428, 18 S. W. 815.
The decree appealed from is affirmed.