140 Ga. 321 | Ga. | 1913
1. The plaintiff sought to enjoin the defendant from cupping, boxing, and extracting gum from the trees on a described tract of land. In the petition it was alleged, that W. N. Spear, on November 10th, 1905, being the owner of the timber, executed to J. J. Calder a turpentine lease for the purpose of boxing, working, and otherwise using the timber for turpentine purposes, the lease providing that the lessee may commence working the timber for turpentine at any time that he may desire, and shall have the right to continue to work the timber for the full term of six years from the time the boxing and working first commenced, which lease was duly recorded February 2, 1906; and that Calder assigned his interest in the lease to the plaintiff. In the 5th paragraph it was alleged that the defendant, about March, 1912, entered upon the land and was cupping the timber for turpentine purposes; and in the 7th paragraph it was alleged that the plaintiff and defendant claimed under- the same common grantor, to wit W. N. Spear, and that the plaintiff’s title is clear. In its answer the defendant admitted having entered upon the land and worked and cupped the timber thereon under a lease made by W. N. Spear to the
2. The defendant did not set up in its answer any other title than the lease from W. N. Spear, which was of subsequent date to that of the plaintiff; but on the interlocutory hearing it offered to prove an outstanding title acquired subsequently to the filing of the suit, and the court repelled evidence of such title. Where a defendant in his answer admits that he claims under a common grantor, he will not be permitted to prove a paramount outstanding title. The averment that the defendant claimed title from a common grantor is a solemn admission in judicio, and he will not be permitted to introduce evidence to deny any admission in the record until such admission has been withdrawn. Lydia Pinkham Co. v. Gibbs, 108 Ga. 138, 141 (38 S. E. 945); Alabama Midland R. Co. v. Guilford, 114 Ga. 627 (40 S. E. 794). The court properly refused to receive the testimony.
3. The evidence authorized a finding that the trespass was a continuing one, and that unless the injunction were granted a multiplicity of suits would ensue. In such case an injunction will issue. Gray Lumber Co. v. Gaskin, 122 Ga. 342 (50 S. E. 164); Loudermilk v. Martin, 130 Ga. 525 (61 S. E. 122).
Judgment affirmed.