52 Ga. App. 386 | Ga. Ct. App. | 1936
This case was transferred to this court by the Supreme Court, for the reason that it was an action for monetary damages on account of trespass, and was not a case in which the equitable writ of injunction would lie, nor was the title to land directly involved. Williams v. Aycock, 180 Ga. 570 (179 S. E. 770).
1. Where it appeared from the allegations of the petition that the plaintiff’s grantor owned a large lot of land on which there was a house, and the City of Atlanta passed an ordinance improv
2. “The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes Avith such enjoyment is a tort for which an action shall lie.” Code of 1933, § 105-1401. Therefore “the person having
(a) Where the plaintiff has the legal title, even though out of possession, he may maintain trespass. Gaskins v. Gray Lumber Co., 6 Ga. App. 167, 168 (64 S. E. 714). Under the allegations of the petition, the plaintiff held the legal title to the premises, and could maintain an action for trespass against one committing a trespass against his title and right to possession. See Allen v. Potter, 153 Ga. 24 (111 S. E. 549); Atlantic & Gulf R. Co. v. Fuller, 48 Ga. 423; Ault v. Meager, 112 Ga. 148 (37 S. E. 185); Clower v. Maynard, 112 Ga. 340 (37 S. E. 370); Fender v. Gardner, 153 Ga. 460 (112 S. E. 368); Moore v. Vickers, 126 Ga. 142 (54 S. E. 814).
(b) This case is not within the principle laid down in Scott v. Mathis, 72 Ga. 119, in that the defendant in this case, unlike the defendant in that case, under the allegations of the petition has not the legal title to the premises. If the plaintiffs allegations are true (and they must be so taken on general demurrer), the defendant had no title to the premises, the deed from the marshal to his predecessor in title conveying no title, on account of the void sale.
It follows that the petition set out a cause of action for recovery of whatever damages plaintiff sustained by reason of the alleged trespass, and the court erred in dismissing it on general demurrer.
Judgment reversed.