139 Ga. 318 | Ga. | 1913
(After stating the foregoing facts.)
It is true that two witnesses say in their affidavits that “for a number of years W. W. Gaskins and those claiming under him have had possession of lot of land number 508 in the _ 6th district of said State and county,” but it does not appear how long “a number of years” was, or who those claiming under him were, or whether the plaintiff was one. It had been shown that Western & Gunn went into possession in 1887 or 1891, but there was no evidence to show that they ever went out of possession, or whether they still were in possession and claimed the rights under the timber lease from P. H. Gaskins. We áre left entirely to conjecture as to this. Nor does the fact that the timber lease from P. H. Gaskins to the plaintiff in the court below was “duly witnessed and recorded” help the situation, there being no evidence that the
Without discussing whether the decisions in the cases of Bullock v. Dunbar, 114 Ga. 754 (40 S. E. 783), Hodges v. Stuart Lumber Co., 128 Ga. 733 (58 S. E. 354), and Gorham v. Montfort, 137 Ga. 134 (72 S. E. 893), are entirely reconcilable, it is sufficient for the purposes of the present case to say that it was not one dependent on an effort to invoke a presumption .or inference of settlement of an estate, assent to a legacy, payment of purchase-money, or the like, in favor of one in possession of the propertj^, but it rested upon the simple question of competition between two deeds—one made by a decedent and unrecorded, and the other made by his administrator and recorded. The court erred in granting an interlocutory injunction against the defendant, and in not granting an injunction against the plaintiff.
Judgment reversed.