135 Ga. 804 | Ga. | 1911
(After stating the facts.) The court did not err in overruling the objections urged by the defendant to the amendment to the plaintiff’s petition. It will be seen that this amendment first added two numbered paragraphs to the .original petition, and then added thereto a separate, independent,’ and separately paragraphed count, whereby the petition as amended contained two ■counts, the first of which was the original petition enlarged by the two additional paragraphs above referred to, and the second of which was the new count set forth in the amendment. The objection that the amendment to the first count “should not be allowed, for the reason that it [shows] no privity or contractual relation between Eebecca Hertz and Allie W. Watters,” was without merit. The original petition, while not drawn with such precision of statement as to clearly and aptly set forth the evident purpose for which it was brought, and while containing matter which, relatively to such purpose, was entirely superfluous, was, when properly construed, simply a petition for the recovery from the defendant of a described tract of land, and the rental thereof; the possession of which land he had held under the plaintiff for a given purpose; ■and which, after this purpose had been accomplished, he refused to surrender to her. While there were statements in the original peti
The objection to the allowance of the second count of the petition, set up in the amendment thereto, “upon the ground that the law of an undisclosed principal has no application in the case of a contract under seal,” was not well taken,- for the simple and sufficient reason that the contract as set forth in this separate and inde
According to the allegations of the petition, the plaintiff had fully performed her part of the contract with Doss, by allowing Watters, his assignee, to cut and remove the timber and cord-wood from the land; and this being true, Watters’s right to hold possession of the land for any purpose had terminated, and he' had become, relatively to the plaintiff, a mere trespasser, against whom she had a right of action for the recovery of the land.
None of the special demurrers was meritorious. As already shown, it was not necessary for the plaintiff to show any legal title to or prior possession of the land; as the defendant having entered upon the same as her licensee, his possession, during the term of his' license, was her possession, and he was in no position at the institu-, tion of the suit to dispute her title. Eor the same reason, it was not necessary for the plaintiff to set forth, or attach, an abstract of title.
The demurrer upon the ground “that plaintiff contracted and agreed that she owned and had full power to represent all interest in the land, or that she would procure the written ratification of the parties holding interest therein,” and “It does not appear that she has complied or is able to -comply with the terms of her agreement with reference to said matters and things,” is so obviously without merit as hardly to need discussion. According to the petition the defendant, Watters, had remained in the undisturbed possession of
In reference to the fifth ground of demurrer,- it may be said, that while it is true that in the contract between the plaintiff and Doss the plaintiff did not undertake to" convey any interest in the land further than the timber growing thereon, and that one may own the standing timber upon a given tract of land without holding the legal title'to, or even being entitled to the possession of the land itself, yet .it is apparent, under the allegations of the petition, that the possession which Watters obtained was derived from the plaintiff. Moreover, the contract shows that Doss dealt with the plaintiff as an owner of the land and as having the right to the possession of the same. He not only -agreed to purchase from her the timber upon the land, but, in consideration of the sale of the timber to him, he also agreed to erect on the land a four-room dwelling-house and also a kitchen,- and to inclose the whole tract with a substantial barbed wire fence, thus impliedly recognizing, if not her title to the land, at least her right- to the possession of the same. On the other hand the contract, as amplified and explained by the sealed instrument which was signed by both the plaintiff and Doss, contains the stipulation, apparently inserted at the instance of Doss, that the plaintiff “hereby contracts and agrees that she now owns or has full power to represent all interests in said lot or she will procure the written ratification of the parties holding interest therein.” This shows that the parties were not dealing with the timber,upon the land as an interest therein which had been previously -carved out of the entire fee, but as something which at the inception of the contract was still embraced in the original fee to the land itself and which, but for the making of the contract, would so continue. v
Judgment affirmed.