120 Ga. 1068 | Ga. | 1904
(After stating the facts.) The Georgia Land Com-, pany instituted proceedings to dispossess Tansy Cook from land which the company had purchased at a tax sale. She filed an equitable petition seeking to enjoin the dispossessory warrant, contending that until after the expiration of the redemption year, the company, as purchaser , at a tax sale, did not have such an estate as would entitle it to this relief. Pending the suit the twelve months expired. Thereupon the company, by a cross-bill, prayed for a decree establishing its title. This was resisted by the plaintiff, who contended that the company could only recover on the title as it existed at the time of the institution of the dispossessory proceedings. In actions of ejectment, or cases involrfing title and right of possession, the question primarily is whether the plaintiff had a right to recover at the commencement of the suit. If he did, he might be entitled to costs, damages, or mesne profits because of that right, even though pending the trial something occurred which made it impossible for him to recover the premises in dispute, or to have a writ of possession. And had there been any claim for mesne profits or cost due to this plaintiff, she would not have been deprived thereof merely because, pending the action, the defendant’s inchoate rights had ripened into perfect title. But while these incidental features might have prevented the plea of puis darrein continuance from operating as a complete bar, it would not destroy the company’s right to set up this title for the purpose of preventing her from retaining possession of the premises in dispute. A defendant in any case may, by a special plea, set up matter of defense which
Judgment affirmed.
