Dixon, Mitchell & Co. v. Monroe , 112 Ga. 158 ( 1900 )

Cobb, J.

Monroe filed his petition against Dixon, Mitchell & Company, in which he prayed that the defendants be enjoined from cutting and removing the timber from two described lots of land alleged to be the property of the plaintiff. There was no allegation that the defendants were insolvent, or that the trespass sought to be enjoined was irreparable in damages, or of other circumstances which would ordinarily authorize a court of equity to interfere by the granting of a writ of injunction. Attached to the petition was an abstract of title, which it was claimed showed that the plaintiff had a “perfect title” to the land upon which the timber was situated. The defendants answered, disclaiming title to one of the lots, setting up title in themselves to the other, and denying that the plaintiff had a “perfect title” to the same. At the hearing the judge granted the injunction as to the lot last referred to, and this ruling is assigned as error.

Unless the granting of the injunction can be upheld as authorized under the provisions of section 4927 of the Civil Code, the decision complained of was erroneous. See Civil Code, §4916, and cases cited thereunder. To authorize the granting of an injunction under the section first named, the petitioner must attach to his petition an abstract of Ms title, showing that he has a “ perfect title” to the land upon wMch the timber is situated, stating in the abstract “the name of grantor and grantee, date, consideration, and description of property, names of witnesses, when and where recorded,” and the “ original titles ” referred to M the abstract must be produced before the judge. The words “ perfect title,” as employed in the section referred to, “mean a complete and perfect paper at least capable of bemg recorded, if not actually recorded.” The use of the terms “grantor,” etc., and the reqmrement that the “original titles” shall be produced before the judge, “are incompatible with any other idea than that wMch we have just expressed.” Wilcox Lumber Co. v. Bullock, 109 Ga. 535. “The plaintiff must show a perfect title upon the face of the papers presented by Mm and constituting Ms cham of title. If such papers do not show upon their face a perfect title, aliunde evidence will not be admitted to explain the defects M the title apparent upon the face of the papers.” Camp v. Dixon, 111 Ga. 674.

The “ original titles ” produced before the judge in the present case were: (1) a grant from the State to W. Wright and Russell Helium; (2) a quitclaim deed from Mildred M. Cutler to G. W. Garmany; (3) a quitclaim deed from Green' Troup Helium and others, describing themselves “ as the heirs at law of Russell Helium, deceased,” to the executrix of the will of G. W. Garmany; (4) deeds from Garmany to a half interest and from Ms executrix to the other half interest to the plaintiff. It is apparent that these papers do not show upon their face a “perfect title” m the plamtiff. There is' nothing in the' papers which shows' title out óf W. Wright to his interest in the lot, and the only thing connecting the deed of Green Troup Kellum and others with the title of Russfell Kellum is the recital in the deed that they are his heirs at law. “ A recital in a deed that the parties- making'it-areheirs-at law óf aformer owner is no evidence of the fact recited, except as against parties to the deed and their privies.” Yahoola, Co. v. Irby, 40 Ga. 479; Hanks v. Phillips, 39 Ga. 550. See also Cruger v. Tucker, 69 Ga. 557; Bank v. Cody, 93 Ga. 127; Heard v. Nix, 96 Ga. 54; Loan Company v. Haile, 106 Ga. 503.

The defect appearing upon the face of the papers was sought to bé cured by an affidavit showing that Mildred M. Cutler was the sole heir of W. Wright, and that Green 'Troup Kellum and the other grantees in the deed above referred to were the only heirs of Russell Kellum. The evidence contained in this affidavit “ could not be looked to for the purpose of curing the defect in the paper title.” Camp v. Dixon, supra. The allegations and proof not being such as to authorize the granting of an- injunction, either -under the general principles of equity, or the peculiar provisions of section 4927 of the Civil Code, the judgment must be

Beversed.

All the Justices concurring, except Little, J., absent.