125 Ga. 435 | Ga. | 1906
John McMullen brought a petition for injunction against J. E. Cooper, Jane E. Cooper, and many others, praying that "the defendants be restrained and enjoined from exercising any acts of ownership or control over the real estate described in the petition. Petitioner claims the land under deeds from William McMullen; and alleges, that William McMullen acquired title by deed from J. E. Cooper in 1879; that “the said J. E. Cooper, disregarding the deed which he made to the said William McMullen and of your petitioner’s rights under said deed which he made, and "to defraud your petitioner out of said land and the quiet and peaceful possession of the same, and in violation of his general warranty, bought from E. Bearden of said county and took a deed to four hundred acres of said lot of land, which deed is dated October 24th, 1890.” He further alleges, that “J. E. Cooper, or his wife, Jane E. Cooper, sold fifty-four acres of said lot to Ada Hammack, and executed deed thereto,” and that J. E. Cooper, or his wife, sold various other small tracts off this four hundred acres to various parties; and that Jane E. Cooper, at the instance of her husband, leased the timber privileges on the tract in question to one Ash-burn for a term of ten years. It is nowhere alleged in the petition that any of the defendants (grantees of J. E. Cooper or his wife) are in.possession, or that Ashburn has cut or threatened to cut any
As none of the parties named as defendants had ever attempted,, or were at the time of the filing of the petition attempting or threatening to attempt, any act of trespass upon the lands in controversy, or to do or perform any act of control or ownership over them; and as there is a prayer against each and every defendant "that his deed or lease be delivered up and canceled, it is evident that the relief sought is the removal of clouds upon the title of petitioner, or the quieting of his title. In fact, in the brief filed by his counsel in this, court the petition is treated solely and entirely as one for the removal of a cloud, or to quiet title, the language of the brief being as follows: “This was a bill filed in the superior-court of Colquitt county, to cancel a set of deeds made by the defendant after he had sold the land to complainant’s grantor.” As-it stands, the petition has several inherent and vital weaknesses that are unable to withstand the general demurrers of any of the defendants; and -the court below did not err in so holding. In the first place, the plaintiff does not aver, even in the most general terms, that he is the true owner of or has a good title to the premises-in dispute, nor is there a sufficient allegation of facts to show title in him. There is no averment that either of his alleged predecessors in title was the true owner of the lands; nor are they shown to have ever been in possession thereof. They are as innocent of any act of possession, or ownership, or control of the lands as the-plaintiff himself or any of the parties named as defendants in this, action. The lands are not alleged to be wild lands, nor is it shown that any portion of them is occupied by any of the parties, plaintiff or defendant, in this case. And the bare statement of these patent, deficiencies in the plaintiff’s case renders entirely unnecessary a discussion of the question as to whether or not the petition was subject to demurrer. It is a general rule that in order for a plaintiff to maintain an equitable petition to remove a cloud upon title, he must show actual possession in himself. See 17 Enc. PI. & Pr. 306, with numerous citations from nearly every State in the Union.
• The authorities cited are so conclusive that neither further citation of authority nor argument is needed to demonstrate that the ■court, below did not err in sustaining the demurrefs.
Judgment affirmed.