Bleckley v. White

• Decision Date: 18 June 1896
• Citation: 25 S.E. 592,98 Ga. 594
• Parties: BLECKLEY et al. v. WHITE et al.
• Court: Georgia Supreme Court

98 Ga. 594

25 S.E. 592

BLECKLEY et al.

v.WHITE et al.

Supreme Court of Georgia.

June 18, 1896.

Ejectment—Evidence of Title—Dismissal.

1. The defendants in an action of ejectment not having, by plea or otherwise, prayed for any affirmative relief against the plaintiffs, it was the right of the latter, even after a judgment in their favor had been set aside by the supreme court, to dismiss their action at pleasure at any time before the case was again tried.

2. The bare statement of a witness that title to realty "passed" from one person into another is wholly incompetent to show title in the latter.

3. A deed from one who is apparently a stranger to the paramount title, and who is not shown to have ever been in possession of the premises conveyed, is insufficient to make out a prima facie case showing title in the grantee claiming thereunder.

4. The plaintiffs having utterly failed either to prove a joint ownership of the premises in controversy, or to show that either of them had any interest, legal or equitable, therein, the court erred in granting an injunction restraining the defendants from interfering with, or exercising control over, the premises.

(Syllabus by the Court.)

Error from superior court, Rabun county; J. J. Kimsey, Judge.

Petition by Sara E. White and another against John C. Cannon, administrator of H. W. Cannon, deceased, and others, for injunction. From a decree for plaintiffs, defendants bring error. Reversed.

W. S. Paris and H. H. Dean, for plaintiffs in error.

J. B. Estes, for defendants in error.

LUMPKIN, J. A controversy as to the ownership of the land involved in the present action arose in 1884, when H. W. Cannon and P. A. Bleckley brought ejectment for Its recovery against W. D. Young and Caleb Wood-all. After a verdict for the plaintiffs, the defendants moved for a new trial, which was granted, and this judgment was affirmed by this court. See 92 Ga. 164, 17 S. E. 863. Subsequently, after Bleckley had been strick en as a party plaintiff, and the administrator of Cannon, who had died, had been made a party in his stead, the plaintiff's attorney made the following entry on the declaration: "The defendants having abandoned the possession of the premises sued for, and the plaintiff John C. Cannon, as administrator of the estate of H. W. Cannon, having regained his intestate's former possession of the same, this suit is therefore dismissed by the plaintiff in vacation." On August 1, 1895, W. D. Young and Sara E. White, alleging themselves to be the owners of the land, brought their present petition for the purpose of enjoining Cannon, as administrator, James Bleckley, and W. S. Paris, attorney for the plaintiffs in the ejectment suit, from Interfering with, cutting timber on, or otherwise exercising any acts of ownership over the land. The trial judge granted the injunction prayed for, which is the error complained of in the present bill of exceptions.

1. One ground of the plaintiffs' petition was that the dismissal of the ejectment suit was unauthorized, and operated prejudicially to their rights in the premises. How this could be true as to one of the plaintiffs, Sara E. White, it is difficult to conceive, as she was not a party to that case. But, even if the parties to both actions were identical, the dismissal of the action in ejectment affords no legal or equitable ground of complaint. From the pleadings in that case, which were introduced in evidence at the hearing of the present action, it appears that the only defense offered was a plea of not guilty. Neither by counter petition, answer, plea, nor otherwise, did the defendants seek any affirmative relief against the original plaintiffs to that action, or the sole remaining plaintiff at the time it was dismissed. Therefore when the case was voluntarily dismissed the defendants gained all the relief they could have claimed under the pleadings filed by them. In dismissing the action in vacation, the plaintiff in ejectment merely exercised a right expressly conferred upon him by law. Code, S 3447. In this connection the case of Jackson v. Roane, 96 Ga. 40, 23 S. E. 118, is precisely in point, and cites several other decisions of this court to the same effect.

2. In support of their claim of ownership the plaintiffs in the present action undertook to trace title from Charles F. Betton, alleged to be the original grantee from the state, into Abbott H....