173 Ga. 581 | Ga. | 1931
The entire estate of J. A. Johnson, who died intestate, consisting of approximately 157 acres of land in three tracts in Laurens County, was set aside as a year’s support to his widow, Mrs. Eliza Johnson, by appraisers appointed by the ordinary for that purpose. The return of the appraisers filed with the ordinary valued the land at $800. A caveat to this return was filed by Mrs. Lessie Pullen, a daughter of the intestate, and by G. A.
In courts of review, the rule that in applications for injunction, in which the evidence upon material issues is conflicting, the discretion of the trial judge in the grant or refusal .of an interlocutory injunction will not be interfered with unless there is an abuse of discretion, seems to be well settled. It has been adopted by the Supreme Court of Georgia at least. Upon review of the record in the present case, it would seem that there was no abuse of discretion in the case now before us, and that this statement might suffice to express our opinion that the judgment of the lower court should be affirmed. It is insisted, however, by counsel for plaintiffs in error that the petition of Mrs. Johnson merely constituted an action to restrain a trespass, because upon .the death of John A. Johnson intestate his land descended immediately to his heirs at law under'the provisions of § 3929 of the Civil Code of 1910; that consequently the wife and children and lineal descendants of children are tenants in common of the real property left by the intestate, and as cotenants they have equal rights to the possession thereof under § 3723 of that Code. It is therefore argued that while the entire estate was set aside to Mrs. Eliza Johnson as .a year’s support, an appeal was taken from the judgment of the court of ordinary, and is now pending in the superior court of Laurens county, whereby the judgment of the court of ordinary is suspended. The cases of Board of Education of Glynn County v. Day, 128 Ga. 156 (9) (57 S. E. 359), and Hood v. Swint, 153 Ga. 708 (112 S. E. 892), are cited to support the proposition that when one claiming to be the sole owner in fee brings an equitable petition against another alleged to be a mere trespasser, not to recover the land, but to enjoin the defendant from interfering therewith as a trespasser, if the evidence shows that the defendant is not a trespasser, but a tenant in common with the plaintiff, the court should not restrain the defendant from any right attached to his possession as a eotenant. In other words, it is urged upon us that a trespass by one having no title is not the same as an entry by a cotenant, even if accompanied by wrongful conduct. We agree thoroughly with the proposition stated.by counsel for plaintiffs in error, that there can be no adverse possession against a cotenant until actual ouster, or exclusive possession after demand,
Judgment affirmed.