46 Ga. App. 559 | Ga. Ct. App. | 1933
J. C. Palmer brought suit against L. T. Pennington for an alleged trespass on realty. The real estate formerly belonged to E. E. Jones, a common grantor. Jones gave a security deed to the First National Bank of Waynesboro, covering the land in dispute, on January 5, 1921. It was testified that Jones subsequently gave a second security deed to the American Agricultural Chemical Company covering the same land, though such second security deed was not introduced in evidence. E. E. Jones created a timber lease on the timber on said land to the Waynesboro Planing Mill, a corporation. This lease was recorded July 3, 1922. In 1926 the Waynesboro Planing Mill transferred this timber lease to L. T. Pennington, the plaintiff in error in this case. At the time of the execution of such timber lease it was shown that the First National Bank of Waynesboro consented to the sale of the timber to the planing mill, and it was further shown that the American Agricultural Chemical Company would not and did not consent to such sale except and unless one half the purchase price of the timber was paid to it. The American Agricultural Chemical Company was paid the sum of $150 for its purported release of the timber, the same being a part of the amount realized by Jones, the common
“To maintain an action for trespass or injury to realty, it is essential that the plaintiff show either that he was the true owner or was in possession at the time of the trespass; and when he relies upon possession alone it must be actual possession of that portion of the tract upon which the trespass was committed.” Hefner v. Fulton Bag and Cotton Mills, 39 Ga. App. 728 (148 S. E. 355); Downing v. Anderson, 126 Ga. 373, 374 (55 S. E. 184); Ault v. Meager, 112 Ga. 148, 150 (37 S. E. 185); Whiddon v. Williams Lumber Co., 98
“A bona fide purchaser without notice, to be entitled to protection, must be so not only at the time of the contract or conveyance, but until the purchase money is actually paid. Actual payment of the purchase money is, in general, necessary to the character of a bona fide purchaser for a valuable consideration, and giving a security, or executing an obligation for payment, will not be sufficient.” Mackey v. Bowles, 98 Ga. 730, 733 (25 S. E. 834) ; Donalson v. Thomason, 137 Ga. 848, 851 (74 S. E. 762); Carter v. Pinckard, 68 Ga. 817.
Eecitals in a deed as to advertisement, time and place of sale, and the amount paid, being purely ministerial in their character, are prima facie correct. A purported deed containing such necessary recitals, together with' the power of attorney which is claimed to be exercised, is admissible in evidence without further proof. See, in this connection, Civil Code (1910), § 5736.
Palmer, the plaintiff in the court below, is not entitled to recover unless he is the holder of the legal title or in actual possession of the land in dispute. Under the allegations and proof made in this case, if he were shown to be the holder of the legal title or in actual possession of the land in dispute, he would be entitled to recover, for the reason that the purported consent by the First National Bank of Waynesboro to the lease of this timber by Jones was without consideration and a mere naked promise. Palmer claims the right of possession in his petition under the First National Bank of Waynesboro, and not under the second security deed given by Jones to the American Agricultural Chemical Company. The First National Bank itself, if it had been the purchaser under the
Judgment reversed.