Gardner v. Kersey, 39 Ga. 664

Gardner v. Kersey

39 Ga. 664 | Ga. | 1869

Brown, C. J.

1. The fact whether the recovery was upon the demise of Little alone, was matter of record, and should have been determined by the record. And the Chancellor was not bound to grant an injunction upon the allegation of that fact by the complainant, unless the allegation was sustained by the record, though it was not denied by the answer of the defendant, who stated that he djd not know the fact. In addition to this, the Judge who tried the ejectment case, and who is the same to whom the bill for injunction was presented, certifies that he cannot undertake to say upon which of the’demises the recovery was had. The plaintiffs in error have brought their cases here unaccompanied by any copy of the record in the *667ejectment case, and have gone into the hearing without any suggestion of a diminution of the record. Without the record, it is very clear that we cannot determine a fact upon which the Judge, who tried the case, certifies he cannot enlighten us. We will not, therefore, control his discretion in refusing to grant the injunction on-this ground.

2. It is a well established rule that the verdict, and the judgment of the Court, is to be upheld by every reasonable intendment. If a recovery is had in ejectment upon four different demises, and one of the lessors is shown to have been dead at the time, in the absence of proof to the contrary, the law will presume that the recovery was had upon the demises of the living plaintiffs.

3. The plaintiff in ejectment who has obtained a judgment for the premises in dispute is entitled, as against the defendants, and all persons holding under them, to a writ of possession. And in case the premises recovered are a plantation which has upon it a growing crop, the crop goes with the premises, and the plaintiff is entitled to it, unless he has put in issue and has recovered, as mesne profits, the rent for that year.

4. But if the plaintiff has recovered rent for the year in which the recovery is had, he is not entitled to the growing crop of that year. While he is entitled to be put in possession of the premises, he is bound to allow the tenant ingress and egress to gather and remove the crop. If he has recovered rent for the part of the year up to the time of the trial, and there is a growing crop on the premises at that time, the crop is to be divided pro rata between him and the tenant. If the plaintiff in ejectment intends to claim the growing crop, he should be careful not to put in issue or introduce evidence, as to the value of the rent for that year. The English rule is, that the growing crop passes with the land to the plaintiff in ejectment, and does not belong to the tenant, who is a trespasser from the date of the demise. See Adams on ejectment, 347 ; 5 Barn. & Aid., 88. This is also the rule in several of the States of the Union. See 3 Lit., 334; 3 Rand., 462.

*668But in England the plaintiff in ejectment did not recover the rents as mesne profits, in that action, but was compelled to bring a separate action for mesne profits. Our statute fixes a different rule. With us the plaintiff must recover both the premises and the rent in the same action. It would seem, therefore, that the reason of the English rule does not apply, and that it would be inequitable and unjust to permit the plaintiff to recover rent for the year, and to take possession of the growing crop with the premises.

As the record before us in the equity cause, is not accompanied by the record and evidence in the ejectment cause, we do not pretend to determine whether or not there was a recovery of rent for the present year. If there was not, the plaintiff in ejectment was entitled to the growing crop, and the complainant could not sustain this bill. But if the reverse is true, and the plaintiff in ejectment appropriates the crop to himself, and refuses to permit the tenant to gather and carry it away, he is liable in damages, at law, to the tenant for its value.

In this view of the case, which we are satisfied is the true one, the complainant had a full and complete remedy at law and the Judge did not err in refusing to entertain the bill and grant the injunction.

Judgment affirmed.