Payne v. Nix , 193 Ga. 4 ( 1941 )

In this suit to enjoin cutting of timber, the plaintiff was not entitled to prevail on the theory of possession, or on the theory of prescriptive title, or on the theory of perfect paper title, and therefore, on those theories, the court did not err in granting a nonsuit; but the plaintiff having sought to prove good title by a necessary deed, which was improperly excluded, the grant of a nonsuit must be reversed, even though he did not show insolvency of the defendants or any other ground of equitable relief. This is true under the rule that where evidence without which the plaintiff could not possibly recover is erroneously excluded, his failure to go on and prove other essential facts will not sanctify a judgment of nonsuit, unless it appears from the face of the record that the plaintiff in no event would be entitled to a recovery.

No. 13829. OCTOBER 15, 1941. J. G. Payne alleged, in an equitable petition against Brannon Nix and Edgar Tomlin, that he was the owner of land lot 57 in the 1st land district of White County, comprising 250 acres, except 25 acres in the southeast corner; and he claimed title under an attached abstract, and title by prescription based on his possession for more than seven years under color of title, and his possession for more than twenty years. He relied also on possession alone. He alleged, that the defendants were trespassing by cutting valuable timber on the land; that they were insolvent; that he was remediless at law, and unless equity intervened to enjoin the defendants, their agents, and employees, a multiplicity of suits would be necessary. The prayers were for a restraining order and injunction against the cutting and removal of the timber, for an accounting as to the timber cut, sawed, and disposed of, for damages, and for general relief. The answer denied generally all averments of the petition, and set up that the defendant Nix was the owner of the land.

The plaintiff excepted to the grant of a nonsuit, on the ground that the evidence authorized, if it did not require, a verdict in his favor, and that his evidence showed title, if a tendered deed had been admitted. He excepted to the exclusion of this deed, and to the exclusion of an execution in personam and in rem against the land, with assignments on the back of that instrument to the plaintiff's predecessors in title and to him.

Under his alleged paper title, the plaintiff claimed under a will probated in 1878; a deed thereunder to Loud Hydraulic Hose Gold Mining Company, dated and recorded in 1881; a sheriff's deed, under a fi. fa. against that company, to A. H. Henderson Jr., dated and recorded in 1917; a deed from A. H. Henderson Jr. to Sidney P. Reeves, Mary Reeves Sneed, R. K. Reeves Jr., and Anna Reeves Payne, dated and recorded in 1917; a security deed from the last-named grantees to James C. Bloomfield, dated and recorded in 1919; a deed from Lillian M. Bloomfield, as sole heir-at-law of James C. Bloomfield, to National Bank of Athens, dated and recorded in 1931; and a deed from National Bank of Athens to J. G. Payne, the plaintiff, dated in 1937 and afterward recorded. All of these instruments were admitted in evidence, without objection, except the deed from Mrs. Bloomfield. This was excluded on the ground that no title was shown in her, since it did not appear that she was the sole heir at law of James C. Bloomfield and that he died intestate. On that subject the plaintiff introduced the testimony of a witness that Bloomfield died about twelve or fifteen years before, that he had no children, and that Mrs. Bloomfield, the grantor, was his wife, although the witness did not know whether or not there had been administration.

To support his claim of title the plaintiff offered also an execution in personam and in rem especially against the land in dispute, dated 1924, in favor of James C. Bloomfield against S. P. Reeves, R. K. Reeves Jr., Mary B. Sneed, and Mrs. Annie R. Payne, for $5,000 principal and $674.28 interest. On the back of this paper was an assignment of "the within fi. fa., together with the judgment upon which it is founded," dated 1925, executed by "James C. Bloomfield by Green Michael, attorneys of record," to Athens Savings Bank; an assignment of "the annexed fi. fa. . . together with the judgment upon which the same was founded and all our rights, title, and interest thereunder," dated 1928, executed by "Athens Savings Bank by Geo. E. Deadwyler, President" and by "G. A. Mell, Cashier," to National Bank of Athens; and an assignment of "the annexed fi. fa. . . together with the judgment upon which the same is founded and all of our rights, titles, and interests thereunder and the real estate therein described," dated 1935, executed by "The National Bank of Athens by J. O. Bird, Cashier," to the plaintiff. None of the assignments bore any kind of seal. No proof was offered as to the representation of the plaintiff in fi. fa. by his alleged attorneys, or their authority to execute the assignment for him; or as to the official character or the authority of the alleged corporate officers to execute the assignments by the respective corporations. The execution and assignments were excluded on the grounds that the fi. fa. was dormant, and being dead, no assignment thereof could be made; that there was no proof of the purported assignment from Bloomfield, or that Green and Michael were his attorneys of record; that there was no proof of the execution of the assignment by Athens Savings Bank, no seal of the corporation, and no proof as to the authority of the persons signing; that there was no such proof as to the assignment by National Bank of Athens to Payne, the plaintiff; that the execution and assignments failed to convey any interest in the land; and that they were irrelevant and immaterial.

As to any kind of possession by the plaintiff or his predecessors in title, and its duration, R. K. Reeves testified that he was secretary and treasurer of Loud Hydraulic Hose Gold Mining Company, which owned the land in dispute under the above-described deed made to it in 1881 until its title passed to A. H. Henderson Jr., by sheriff's deed in 1917; and that acting for this company and his mother who had bought in its stock, and under authority of his father who was its president, he went into possession of the land in 1908, arranged with Bill Anderson to cultivate and build a fence on the land, and the land was so cultivated and fenced for seven years from 1908 to 1915; that in 1911 the company made an excavation and did some mining on the land; that after 1915 there was no cultivation or mining, and nothing more was done with regard to the property; although the witness testified that he continued to assert title, and no one else claimed the land until the defendant Nix claimed title in 1924 or 1925, and went before the grand jury in 1927, 1928, or 1929 to have action taken against the witness for trespass. This witness testified also when the suit was brought, one of the defendants was cutting timber on the land. 1. In this suit for an injunction and other relief, the plaintiff could have sustained his prayer to enjoin the cutting of timber by showing possession as hereinafter indicated, or a prescriptive title, or a perfect paper title, based entirely on papers capable of being recorded and requiring no extraneous evidence to supply or cure defects, or a title which was good when perfected by such evidence. Under the Code, § 55-204, where a perfect paper title as thus defined is shown, an injunction may be granted against the cutting of timber or boxing or working it for turpentine purposes, without proof that the defendant is insolvent or that the damages would be irreparable. Morgan v. Baxter, 113 Ga. 144, 147 (38 S.E. 411); Dixon v. Monroe, 112 Ga. 158 (37 S.E. 180), and cit.; Gray Lumber Co. v. Gaskin, 122 Ga. 342 (50 S.E. 164). But even though the plaintiff fails to show a perfect paper title, if he shows a good title (McArthur v. Matthewson,67 Ga. 134, 143; First National Bank of Gainesville v. Harmon, 186 Ga. 847 (2), 199 S.E. 223), he may, under the Code, § 55-104, be entitled to an injunction, not only if "the injury shall be irreparable in damages, or the trespasser shall be insolvent," but if other circumstances exist which, in the discretion of the court, render the writ necessary and proper, among which is the avoidance of circuity and multiplicity of actions, or where it is impossible to prove the amount of the damages growing out of the trespass. Among the general principles of equity applicable to the grant of injunctive relief against trespasses, equity will enjoin even a solvent trespasser from committing repeated and continuous trespasses. Kirkland v. Odum, 156 Ga. 131, 135 (118 S.E. 706); Anderson v. Thompson, 192 Ga. 570 (15 S.E.2d 890), and cit.; Moore v. Daugherty, 146 Ga. 176 (91 S.E. 14); Couey v. Talalah Estates Cor., 183 Ga. 442, 445 (188 S.E. 822); Atlantic Coast Line R. Co. v. Gunn,185 Ga. 108, 110 (194 S.E. 365).

(a) The plaintiff failed to make out his case on the theory of a perfect title, under the Code, § 55-204, since one of the deeds in his alleged and proved chain of title was from the alleged "sole heir at law" of a deceased predecessor in title, and parol evidence was necessary to prove this essential fact. Price v.Brown, 143 Ga. 671 (1) (85 S.E. 870); Dixon v. Monroe, supra. Since the plaintiff thus failed to show a perfect paper title or any basis for equitable relief, he was not relieved from showing insolvency on the part of the defendants; and the grant of a nonsuit would have been proper, except for the application of the rule of law dealt with in paragraph 3, subsection (a) of this opinion.

2. The plaintiff failed to make out his case on the theory of prior possession. Although one may "in ejectment . . recover the premises in dispute, upon his prior possession alone, against one who subsequently acquires possession of the land by mere entry and without any lawful right whatever" (Code, § 33-102; Powell on Actions for Land, 387-396, §§ 298-301, and cit.), yet in such a suit, in order to put the defendant on proof of his own title or require him to negative any unlawful character of his possession, the plaintiff must show either a prior unabandoned possession in himself, or such prior possession of a predecessor in title, in which latter case he must show "prior possession of such predecessor and a deed from him to the plaintiff, or to some one under whom the plaintiff claims, while the grantor therein was in actual possession."Priester v. Melton, 123 Ga. 375 (3) (51 S.E. 330); Delay v. Felton, 133 Ga. 15 (3) (65 S.E. 122). Accordingly, the plaintiff could not, under the evidence, have recovered on his mere prior possession, since the only possession proved was that of an alleged predecessor in title, which was long before the execution of the deed from such predecessor. On this theory of the plaintiff's case, the grant of a nonsuit was not erroneous.

(a) Since, in order for a plaintiff to claim under prior possession by a predecessor in title, the possession of such predecessor must be linked with the claim of the plaintiff by a proper muniment of title, and since in the instant case a necessary intermediate deed was excluded from evidence, the plaintiff could not have recovered on the theory of prior possession alone, for this additional reason. For the same reason, he could not have recovered on the theory of seven years possession under color of title. Whether such deed was illegally excluded presents another and different question, hereinafter dealt with.

3. The remaining questions are, whether the plaintiff proved or offered to prove by erroneously excluded evidence a good title; whether, even if such evidence was admitted or offered, the grant of a nonsuit must be affirmed for the reason contended by the defendants, that, irrespective of the proof as to a good title, the plaintiff failed to prove the additional essential facts of trespass, insolvency, or damages; or whether, as contended by the plaintiff, the erroneous exclusion of his evidence as to a good title obviated the necessity of proving what would otherwise have been necessary to obtain an injunction. The contention of the defendants is without merit:

(a) Since under the ruling in Miller v. Speight,61 Ga. 460 (3), 463, which was followed in Vaughn v. Burton,113 Ga. 103 (38 S.E. 310), Proctor Gamble Co. v. BlakelyOil c. Co., 128 Ga. 606 (57 S.E. 879), and Georgia Iron Co. v. Ocean Accident Cor., 133 Ga. 326 (2), 331 (65 S.E. 775), "when the court has erroneously ruled out evidence without which the plaintiff could not possibly recover, his failure to go on and prove other essential facts will not cure the error and sanctify a judgment of nonsuit." This rule will be given application in all cases where the record does not show on its face that the plaintiff was not entitled to recover.

The excluded deed from an alleged "heir at law," taken with other evidence introduced by the plaintiff, being such as to show a prima facie good title, and such excluded deed being vital to his case, and all of the evidence in no wise showing that the plaintiff was not entitled to recover, the judgment of nonsuit will not be affirmed because of the absence of additional proof as to insolvency, a continuing trespass, or other ground for the interference of equity.

4. In accordance with the above rulings, it becomes necessary to pass upon the exceptions to the exclusion of the plaintiff's muniments of title. The excluded deed, which was executed about ten years before the trial, recited that the grantor was the sole heir at law of a decedent. The proof showed that the grantor was the wife of the decedent, who had died twelve or fifteen years before the trial, and left no children. Under this evidence, and without the necessity of showing the absence of a will or administration, it was error to exclude the deed on the objection that it had not been shown that title passed into her, since the widow as sole heir at law prima facie took title to the land, which had been owned by the decedent and which was conveyed by the deed. Miller v. Speight, supra; Johnson v. Champion,88 Ga. 527, 528 (15 S.E. 15); Code, § 113-903; Powell on Actions for Land, 356, § 280. The decisions by this court to the effect that heirs at law can not maintain a suit for land in their own names unless they show that there was no administration of the estate, or that the administrator, if there was one, assented to the bringing of the suit (Greenfield v. McIntyre,112 Ga. 691, 38 S.E. 44; Strickland v. Fender, 142 Ga. 132 (2), 82 S.E. 561; Smith v. Smith, 141 Ga. 629 (3),81 S.E. 895), do not conflict with the ruling in the Miller case, supra, to the effect that prima facie title to land is in the heir at law of a decedent. Especially would this be true after a long lapse of time, such as in this case, since the death of the decedent and the execution of the deed by his heir at law; and the decisions cited as to suits by heirs at law have no application to an action such as that under review, to which heirs or creditors are not parties and would not be bound by the judgment rendered.

5. Exception is taken to the exclusion of an execution in favor of one of plaintiff's predecessors in title, with a judgment in rem against the land, and assignments on the back of the instrument to other predecessors, executed by alleged attorneys of record for the plaintiff in fi. fa., and by corporations through alleged officers, upon objections that there was no proof that the attorneys were attorneys of record for the plaintiff in fi. fa., and no proof of authority of the alleged corporate officers, and no seal of the corporations on the assignments. Such evidence, even if relevant, was not essential to the plaintiff's title, and was properly excluded on the objections taken. See Taylor v.Hartsfield, 134 Ga. 478 (3) (68 S.E. 70); Bank of Garfield v. Clark, 138 Ga. 798, 801 (76 S.E. 95); Jenkins v.Boone, 144 Ga. 44 (85 S.E. 1042); Bale v. Todd,123 Ga. 99 (3) (50 S.E. 990).

6. Under the ruling in paragraph 4, the judgment granting a nonsuit was improper.

Judgment reversed. All the Justices concur.