127 Ga. 155 | Ga. | 1906
The 1st, 2nd, and 4th headnotes need no elaboration. It must be kept in mind that this was not an action of ejectment, but a petition praying for an injunction to restrain the defendant from proceeding to have the sheriff dispossess the plaintiff under a judgment in favor of the defendant against another person alleged to be his tenant, who, it is alleged, had held over after his term had expired. The plaintiff was not a party to this proceeding. If she was in possession, and did not claim under the defendant in the dispossessory-warrant proceeding, and had no connection at all with his title or claim, she would not be bound by the judgment against him, and therefore could not be lawfully ousted of her possession by the sheriff. When a sheriff sells land under execution, he is authorized, in order to put the purchaser in possession, to dispossess the defendant, his heirs, tenants, or assigns since the judgment, but he has no authority to dispossess tenants claiming under an independent title. Civil Code, §§ 5451, 5468. While, under the Civil Code, § 4817, the sheriff seems to be authorized in terms to dispossess only the tenant who holds over, by analogy it would seem that he would be authorized not only to dispossess the tenant but those claiming under him or connected with his title or claim just as in cases of sale under execution, but he would not be justified in dispossessing one in possession not the tenant of the alleged landlord, not in privity with him, nor in any way connected with the landlord or the tenant, but claiming under an independent title. It is apparent from what has been said that the requests to charge, so far as they related to the law of prescription and the burden of proof in ejectment cases, would have been proper if this had been an action of ejectment, but were entirely inappropriate to a proceeding of the character now under consideration. It is also apparent that there was no error in the charge complained of. The judge told the jury that the title of the defendant was defective. This was correct. He showed neither a complete paper title nor possession for a period of time sufficient to raise a title by prescription; and the charge was appropriate to the case and accurate so far as it stated to the jury that the plaintiff could not be dispossessed unless she was connected in some way-with the transaction between the defendant and her father, which raised the relation
Judgment affirmed. Gross-hill dismissed.
