97 Ga. 592 | Ga. | 1895
Flannery & Co. filed a petition in Dodge superior court against Hightower et al., to restrain them-from cutting the
The original defendants filed an answer to the petition, denying that Flannery & Co. were the owners of the lots of land, or that they had ever been in possession of either of the lots; not admitting that the plaintiffs had leased the property for turpentine purposes to J. A. Williams & Co.; denying that Williams & Co. worked the timber for turpentine purposes under such lease; but alleging, on the contrary, that Williams & Co. had, previous to any lease which they may have accepted from Flannery & Co., leased the-
William Ragan filed a petition, praying that he be made a party, alleging that Hightower, the receiver of the Empire Lumber Company, being in possession in subordination to his title, he was bound upon his warranty and therefore desired to be a party. He was made a party; and alleged that he held title to the property under and by virtue of a chain of title: (1) originating in one James Graham who, on the 1st day of March, 1859, conveyed to Lloyd Smith. (2) Possession of Lloyd Smith during his lifetime, and at his death by his tenants, Williams & Co., who boxed and worked the timber on said two lots of land under a lease from the said Lloyd Smith, bearing date January 22d, 1887. (3) The will of Lloyd Smith, bequeathing the land to Eliza J. Smith during her life or widowhood, and at her death or marriage to William Ragan. (4) A deed from Eliza J. Smith to William Ragan.
Thereafter William Ragan amended his cross-petition filed in the case;'alleged that the*plaintiffs’ claim of title to the land in dispute was a cloud upon his title; prayed that the plaintiffs be perpetually enjoined from further interfering with him in his possession of the land or from further claiming title' thereto, and that their deed be declared null and void and be canceled.
Upon the trial of the issues made in the cause, under the
Walker, a witness for the plaintiffs, testified: He was acquainted with the lots in question; had known them 8 or 10 years; first saw them in 1882 or 1883 or 1884. It was then pine land with timber on it, and no one living on it. Never saw any possession on it, only what I put on it before it was boxed. I had a building put on it, on No. 11 I
Morgan testified for the plaintiffs': About ten years ago he went to the two lots in controversy, to trace the lines. At that time the land had not been boxed. He went there with Lloyd Smith. He .was not in possession, and was not setting up any claim to these two lots at that time, but told me they belonged to Choate and Flannery.
Johnson testified for the plaintiffs: I have known the lots in controversy for five or six or seven years. They were then not boxed. They were original forest and no improvements on them. We had a house built on them afterwards by Mr. Walker, agent for Flannery & Co. I suppose it was on the line between 10 and 11. I did not see it; it was burned when I went out there. I saw the remains; that was before the land was boxed. ■ Flannery & Co. had a deed to the land, and put it in the hands of Walker to look after, as well' as other lands in the adjoining county and in this county. Flannery & Co. paid taxes on these lands, and looked after them to see whether they were intruded on and to see that the timber was taken care of.
The defendants introduced the following documentary evidence: (1) Deed from James Graham to Lloyd Smith, to lots 10 and 11 in the 19th district of Pulaski county, dated March 1st, 1859, consideration $100, recorded in Dodge county September 22d, 1887. (2) Lease from Lloyd Smith to J. A. Williams & Co., for said two lots for turpentine purposes, for a term of 3 years, to commence
William Ragan testified: The deed from Eliza Jane Smith to myself was intended to convey these two lots of land, and the land in dispute is part of the land conveyed
Hightower, sworn for the defense, testified: Hosford had bought this timber before I knew anything about it. I was operating the Empire mill as receiver in the case of Kiser et al. v. Empire Lumber Co. et al. We had to buy timber to operate it. Hosford bought timber, and it was paid for in the office. Hosford was acting under me as receiver. We paid Ragan $70.25. We were to pay Ragan fifty cents per 1,000 feet for the timber. Hosford bought-the timber before this suit, under orders from me to buy timber. There was $91.25 in all paid Ragan. The timber is not all cut. We were enjoined. Hosford was authorized to buy timber from Ragan or Flannery either.
Hosford, for the defense, testified to the same effect.
It was admitted that Hightower was appointed receiver by the court, and that he was authorized to buy timber for the purpose of carrying on a saw-mill business.
Whether or not the cultivation of a turpentine farm upon a tract of land is such an occupancy and so notorious, is a question of fact dependent upon the character of acts relied upon to constitute such a possession. In determining this question, the jury are to look to what are the visible signs of occupancy.
In the present case, according to the evidence as it is disclosed by the record, it appears that every pine tree upon the tract of land, available for that purpose, had been boxed and worked for turpentine purposes; that in the process of
As we have heretofore shown, a mere entry, even by the erection of the house in question, unsupported by an actual occupancy or possession thereafter, was not of itself a sufficient basis for a prescription. Upon the point of actual possession, the defendants, from the evidence, seem to have the higher and better right. At all events, the jury have found against the claim of prior possession by the plaintiffs, and in favor of the claim of prior possession upon the part
In the present case, the prior possession of the-defendants was sufficient to protect them against a verdict for the plaintiffs, but it gave to them no right to the affirmative relief prayed for in their answer. It is one thing to show such a state of facts as will defeat a plaintiff's right of recovery, and entirely a different thing to show such a state of facts as would entitle a defendant himself to recover over against the plaintiff. Whether or not the title of the plaintiffs can hereafter avail them anything is not a question now for consideration. We only hold that in this proceeding the defendants, upon the prayer of their cross-bill, were not entitled to have it cancelled.
Judgment affirmed, with direction.