Gilmore v. Wells, 78 Ga. 197

Gilmore v. Wells

78 Ga. 197 | Ga. | 1886

Blandford, Justice.

Gilmore took out a warrant against defendant, under section 4077 of the code, to turn her out of a certain tract of land. The defendant proceeded to file her bill, in her own behalf and as nest friend for her children, against plaintiff, in which she alleged that, by reason of her poverty, she was unable to give the bond required by §4079 of the code. She set up title to the premises through one Perkins, to the land by purchase by her husband while in life, and a bond for title to him by Perkins, and that the *198purchase money had been paid, and seven years’ possession under the bond, and that all the property which her husband left at his death was not worth more than five hundred dollars, and that, the property was hers and her children.’s. She denied that the relation of landlord and tenant ever existed between herself and children, or her husband and' Gilmore, and denied that Gilmore ever had title to the land, and alleged that he was insolvent and unable, to respond to any damages she might recover against him. To this bill Gilmore demurred for want of equity, and because complainants had a full and adequate remedy at law. The court overruled the demurrer,'and defendant excepted, and this, is assigned as. error. The case-proceeded to a hearing and the jury found for complainant. A decree was rendered perpetually enjoining the defendant, Gilmore, from further interfering with the complainants in the enjoyment of the possession of the land in controversy.

The counsel for plaintiff in error insists that this case is governed by the cases of Hall vs. Holmes and wife, 42 Ga. 179; Cherry vs. Ware, 63 Ga. 289, and Huff vs. Markham, 71 Ga. 5-57. It will be seen, by an examination of these cases, that in neither of them was the title of the premises in dispute between the parties, nor will it appear that the relation of landlord and tenant was denied; while, in the present case, the tenancy is denied, and complainant sets forth her and her children’s title independent of the pretended landlord, and denies that he ever had any title whatever, and alleges his insolvency as being unable to respond to complainant for any damages which they, might recover from him by reason of his wrongful act in turning, them out of possession of their land; As it appears to us, this is a bill to restrain a trespass by one who is insolvent; and who is unable to respond for the damages which may be incurred by the.trespass. A court of equity, as a general rule, has no power .to restrain a trespass, but will ordinarily leave the party injured to seek redress for *199'the same in a court of law. But where it is shown that the remedy at law is or will prove fruitless, and the loss or damage is irreparable, then, it has often been decided by this court and it is undoubtedly the law that, a court of equity will intervene by injunction to restrain the trespass. It is as much a trespass to turn one out of possession of her land under color of the law by warrant under section 4077 of the code, by a false affidavit for that purpose, as without such a warrant; and the party so using this law wrongfully is liable to the party aggrieved for any damages they may sustain by the wrongful conduct of the other party. And in this case, the plaintiff in error is alleged to be insolvent and unable to respond in damages for his contemplated wrongful act. The remedy at law falls short of. affording complainants full and adequate relief. So we think that the relief sought in equity is proper, and that the court did right to overrule, the demurrer filed in this case by plaintiff in error; and his. decree in the premises must be affirmed.