188 Ga. 626 | Ga. | 1939
This writ of error presents exceptions to the refusal of an interlocutory injunction. The case is substantially as follows: In 1912 J. E. Duke purchased a tract of land in Marion County, which included by description land lot number 221. In 1916 T. W. McAllister purchased a tract of land situated on the west and north of the tract purchased by Duke, which included by description land lot number 220, which lot lay parallel to and west of land lot 221. In 1935 Ingram & LeGrand Lumber Company, the plaintiff, purchased from McAllister certain standing timber described in part as all of the timber on land lot 220. It is the contention of the plaintiff that it was the intention of McAllister to sell and plaintiff’s intention to purchase the timber on certain land which the parties by mutual mistake thought was a part of land lot 220, but which in fact constitutes part of land lot 221 lying north of a certain fence erected thereon by Duke. In this connection it is alleged that in making said sale McAllister, who is now deceased, had his son Jack McAllister point out the timber to the plaintiff and go over the land with plaintiff’s representatives, and that he pointed out to plaintiff on lot number 221 north of said fence “as a part of the timber which McAllister was offering to sell and your petitioner proposing to buy; that it was the purpose and intention of said McAllister to sell all the pine timber that he had, and this was the understanding of both parties; that your petitioner took into consideration the timber on the north part of this lot 221 when it agreed on the price it would pay for said timber, and would not have made the offer and contract it did, with this timber left out.”
It is the further contention of plaintiff that the fence above
This action was brought against J. F. Duke, Wesley McAllister, Julius McAllister, and Jack McAllister, it being alleged that the three parties last named are heirs of T. W. McAllister, and through inheritance and purchase from other heirs have succeeded to all the title, right, and interest in and to the property of T. W. Mc-Allister. The prayers are: “1. That petitioner’s said lease be reformed so as to include in the description of the land from which the timber is sold the part of lot 221 north of the fence, and said timber be decreed to [be?] the property of petitioner. 2. That said defendant Wesley McAllister be required to convey the timber on said part of lot 221 to petitioner or to transfer to petitioner his lease to the same upon payment by petitioner of said sum of one dollar, which petitioner herewith tenders to him. 3. That said defendant Wesley McAllister, be restrained and enjoined from selling or encumbering the timber on said part of lot 221, or from transferring his lease thereto to any other person. 4. That petitioner have such other and further relief as to the court seem meet and proper.”
Wesley McAllister filed an answer in material part as follows: “This defendant admits that he knew all of lot 221 belonged to Duke, and that he had known this to be the truth for more than 20 years, and that the said wire fence erected by Duke on said land was not on the land line, and that the same had never been considered to be the land line between himself, his father, T. W. Mc-Allister, and Duke. For further plea and answer in his behalf this defendant says that on the 14th day of November, 1938, for a valuable consideration he leased from J. F. Duke all the merchantable pine timber on 99 acres, more or less, off the north side of lot of land 221 in the 32th district of Marion County, State of Georgia, as will appear in deed book 32, page 163, records in the clerk’s office Marion superior court. And for further plea and answer this defendant says that for the past 30 years and more the said J. F. Duke and his predecessor in title E. H. Hughes have
On interlocutory hearing the plaintiff submitted affidavits in support of the allegations of the petition, and the defendants submitted affidavits in support of their answers.
The judge did not err in refusing to grant an injunction. It is not necessary that we pass upon the merits of the plaintiff’s claim to the timber, nor do we pass upon the sufficiency of the evidence to authorize the final relief sought. Injunction is a harsh remedy, and' our constitution and laws invest the judges of the superior courts of this State with a broad discretion in granting or refusing the relief afforded by it, according to the circumstances of each case presented for their consideration (Cubbedge v. Adams, 42 Ga. 124); and such a judgment will not be reversed by this court unless it clearly appears that the judge has abused this discretion. As a general rule, where the evidence on material issues is conflicting, a judgment denying an interlocutory injunction will not be disturbed by this court. Gewinner v. McCrary, 99 Ga. 299 (25 S. E. 648); Gammage v. Powell, 101 Ga. 540 (28 S. E. 969); Hendrix v. Hunt, 168 Ga. 81 (146 S. E. 897). In the present case, besides there_being a decided conflict in the evidence, and especially on the question whether the fence erected by Duke constituted the true line between his lands and the lands of T. W. McAllister, by reason of the acquiescence of said owners therein for seven years by acts and declarations (Code, § 85-1602; Cleveland v. Treadwell, 68 Ga. 835; Camp v. Cochrane, 71 Ga. 865; Glover v. Wright, 82 Ga. 114, 8 S. E. 452), or by virtue of a parol agreement between the adjoining landowners establishing the line, which agreement was accompanied by possession or was otherwise duly executed (Farr v. Woolfolk, 118 Ga. 277, 45 S. E. 230; Mattox v. DeLoach, 32 Ga. App. 454 (123 S. E. 624); Clark v. Hulsey, 54 Ga. 608; Osteen v. Wynn, 131 Ga. 209, 52 S. E. 37, 127 Am. St. R. 212; Bennett v. Swafford, 146 Ga. 473, 91 S. E. 553), it does not appear that there is any real necessity for the injunction sought. “Decrees ordinarily bind only parties and.their privies; but a pending suit shall be a general notice of an equity
Eor the above-stated reasons the judgment refusing an interlocutory injunction is Affirmed.