Fletcher v. Fletcher

123 Ga. 323 | Ga. | 1905

Evans, J.

(After stating the fácts.) 1. The petition was not good as a proceeding to cancel title to land, because the parties to the deeds sought to be cancelled were not parties to the petition. Neither was there any prayer for damages for the trespass actually committed. So the petition was solely a proceeding for injunction to restrain the defendant from cutting or removing the timber, or in anywise interfering with the plaintiff’s possession. An action of trespass upon realty, brought to recover damages to the freehold, is not maintainable by one who is not in possession of the land, unless he shows himself to be the true owner thereof. Whiddon v. Williams Lumber Company, 98 Ga. 700. If the plaintiff is in possession of the land under a claim of ownership, upon proof of such possession, and without showing a complete title, he may maintain against a wrong-doer an action for a trespass upon the property committed while such possession existed. McDonough v. Carter, 98 Ga. 703. Where the plaintiff relies upon possession, he must have the actual physical possession of the property upon which the trespass was alleged to have been committed, to support his right to recover even as against a wrong-doer. Ault v. Meager, 112 Ga. 148. The petition is not a suit to recover damages to the freehold, but is solely to enjoin an interference with the plaintiff’s possession by a trespasser. The allegations as to the manner in which the defendant claimed his right to the timber upon a part of .the land described in the petition, were evidently intended by the pleader to show that the defendant was a trespasser and that his title was fraudulent. If the defendant relied upon his conveyance from the Mauldins as authority to cut the timber, and had knowledge at the time he purchased from the Mauldins how their title had been obtained, his status would in ho wise be superior to that of his grantors. His grantors, the Mauldins, according to the allegations of the petition, knew, at the time they purchased and obtained their deed from J. L. Fletcher, that J. L. Fletcher had fraudulently possessed himself of a deed which had been executed, but never delivered, by plaintiff's grantor. So that the case made by the petition is that of a plaintiff who alleges himself to be in the actual possession of a tract of land under a deed and who is seeking to enjoin an interference with that possession by an insolvent trespasser. It is not necessary to show a perfect title to land to entitle a complainant to enter a court of equity and seek relief against an interference with his possession by an insolvent trespasser. A prima facie title is sufficient in the absence of a better outstanding title. McArthur v. Matthewson, 67 Ga. 134. The possession of land under a deed raises the presumption that the possession is rightful, and that the possessor has a prima facie title. The petition in this case should not have been dismissed on demurrer, but the plaintiff should have been given an opportunity to prove the facts alleged in his petition; and upon proof of the allegations therein contained, he would be entitled to a permanent injunction against the defendant, unless he showed a better title to the timber than that held by the plaintiff. Accordingly, it was error to sustain the demurrer on the ground that the plaintiff had not shown such right or title as would entitle him to the writ of injunction.

Judgment reversed.

All the Justices concur, except Simmons, G. J., absent.