Respass v. Zorn, 42 Ga. 389

Respass v. Zorn

42 Ga. 389 | Ga. | 1871

McCay, J.

Assuming the facts stated in this bill to be true, (as we must in deciding upon the demurrer,) one cannot escape the conclusion that the machinery of the law has been used to give to the defendant an unfair advantage in the contest for this land. He had, by the filing of his bill, necessarily admitted the complainant not to be an intruder, since an intruder is one who does not, in good faith, claim the possession. The Chancellor, by dissolving the injunction, had recognized the bona fides of the then defendant in his claim of the possession, and we are not sure that, until that order, passed with both the parties before him, was in some way discharged, it was not a contempt of the Chancellor to oust the possessor by the summary process resorted to.

Section 4131 of the Code, whilst it allows the dismissal of a bill in vacation, expressly provides that this shall not be done so as to prejudice any right of the defendant. The defendant was, by the Judge’s order, permitted to go on with the cultivation of the land, and this, after a hearing of the several claims of the parties. It smacks very strongly of contempt of this order, passed in a proceeding, at the suggestion of the then complainant, to dismiss his suit, take out the intruder’s warrant, and seize the opportunity of the temporary absence, from the county, of the landlord, to pounce upon the ignorant and careless tenant, and by hoeus poeus, get the possession.

*392Even without the pendency of the bill, we should hesitate to’ let one retain a possession, acquired by imposing upon or colluding with a mere tenant. But, under the circumstances set forth, we think the pendency of the bill and the order of the Judge allowing the defendant to continue the possession^ gives to the Chancellor jurisdiction to treat this whole proceeding, under the warrant, as an attempt to evade the effect of his order.

What the truth of the case may be we know not. We only say that, under the charges in the bill, it was a case for equitable interposition, under the power of the Court, to prevent the evasion of its own orders, and we think the demurrer ought to have been overruled.