137 Ga. 812 | Ga. | 1912
The exception is to the grant of an interlocutory injunction. The plaintiff alleged: that the defendant, F. A. Mize, sold a certain lot of land to A. D. Oliver and executed his warranty deed; that Oliver entered into possession of the premises and proceeded to build a house, which is partly unfinished; that Oliver was adjudicated a bankrupt, and Frank S. Jones was appointed as trustee; that the trustee under proper order sold the lot of land to
The defendant filed his answer under oath, averring: that he is the owner of the land; that one Oliver, with a purpose to cheat and defraud him, induced him to make a deed to the land and accept in payment therefor Oliver’s check on the Bank of Climax, a private bank, of which Oliver was the sole owner; that Oliver induced the defendant to deposit the cheek in his bank; that Oliver was insolvent at the time; that there were no funds in the bank for payment of the check, but this was unknown to the defendant; that shortly thereafter it was discovered that Oliver was an escaped convict, and he fled from Climax and abandoned the property, of which he had sought to defraud this defendant; that the defendant entered into possession thereof and was in possession at the time Oliver was adjudicated a bankrupt and a trustee appointed; that at the trustee’s sale he gave public notice that he was in possession of the property and that Oliver had no title thereto, and warned the public of the nature of his claim; that the land was purchased by Knight, who quitclaimed his interest to the plaintiff. He ad
The adjudication by the court that the defendant’s tenant may enter upon the land for the purpose of gathering his growing crop is an adjudication that the defendant is in possession of the land, or at least that portion of it upon which the crop is growing. The house was alleged to be unfinished; but its character, the point to which the work of construction had advanced, or the necessity of its immediate completion to prevent deterioration or waste, was neither alleged nor proved. The- plaintiff did not allege or prove that the defendant was insolvent; on the other hand, the defendant answered under oath that he was solvent and fully able to respond to any judgment which the plaintiff may recover against him by reason of the facts alleged. The only acts charged to be trespasses are the defendant’s retention of possession, the tearing down of the plaintiff’s placard of warning to trespassers, and substituting therefor his own placard forbidding trespassers on the land. Therefore the case as made before the judge on interlocutory hearing is one where two persons are claiming title to the same land, one of whom is in possession, and who is solvent and doing no act to the injury of the property, and the other claimant is seeking to enjoin the one in possession, who is solvent, from further remaining in possession and exercising acts indicating ownership, which are not injurious to the property. The remedy of the plaintiff by action at
Furthermore, the scope and effect of the judgment complained of is to evict the defendant in actual possession and permit the plaintiff to enter for the purpose of completing the house. ' “The office of an injunction being, under the code of this State, merely to restrain and not to compel performance of an act, this remedy is not available for the purpose of evicting a party from the actual possession of land, the right to which is in dispute between himself and another; and consequently such a result can not be indirectly accomplished by an order restraining the party so in possession ‘ from further interfering with said lot of land, house and crop ; thereo.n. Such an order, being mandatory in its nature, would afford relief not within the proper scope of the writ of injunction. Civil Code [1895], § 4922.” Vaughn v. Yawn, 103 Ga. 557 (29 S. E. 759); Glover v. Newsome, 134 Ga. 376 (67 S. E. 935). The court erred in granting the temporary injunction.
Judgment reversed.