Loudermilk v. Martin

• Decision Date: 15 April 1908
• Citation: 130 Ga. 625,61 S.E. 122
• Parties: LOUDERMILK et al. v. MARTIN.
• Court: Georgia Supreme Court

130 Ga. 625

61 S.E. 122

LOUDERMILK et al.

v.MARTIN.

Supreme Court of Georgia.

April 15, 1908.

1. Injunction—Subjects of Protection and Relief—Trespasses to Real Property. In a suit for injunction against trespass by cutting and removing timber from land, the plaintiff alleged, and introduced evidence, that one of the defendants had sold the land to her in consideration of her agreement to pay an annuity to the vendor, and that, on the faith of this contract, she went into possession of the land, paid taxes, and made valuable improvements on it, and paid the annuity. Held:

(a) The refusal of the vendor to make a deed in accordance with the contract would not prevent the vendee from securing an injunction against such trespass.

(b) It would not be necessary upon the trial of such a case for the vendee to show title in the vendor.

(c) Where the vendor, and others acting for the vendor, are removing and threaten to continue from day to day to remove timber from the land, the vendee is entitled to an injunction against such trespasses.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 27, Injunction, § 105.]

2. Same.

Under the facts disclosed by the record, the court did not abuse its discretion in granting an interlocutory injunction.

(Syllabus by the Court.)

Error from Superior Court, Habersham County; J. J. Kimsey, Judge.

Action by Carrie Martin against Allie Loudermilk and others. Judgment for plaintiff, and defendants bring error. Affirmed.

J. C. Edwards, for plaintiffs in error.

John L. Perkins, for defendant in error.

HOLDEN, J. The defendant in error made application to enjoin the plaintiffs in error from cutting and removing growing trees from the land which she claimed. To the order of the court granting an interlocutory injunction the plaintiffs in error excepted. The original defendants, who admitted that they were cutting timber from the land in dispute, claimed that they were acting for the plaintiff's mother, who was made a party defendant, and made the same answer as the other defendants. The defendants claimed that the plaintiff's mother owned the land in fee simple. The plaintiff claimed that she and her sister held the remainder interest in a tract of land devised by their father to their mother for life, and offered evidence to show that the tract of land was divided between her and her sister by their mother; that her mother relinquished all her interest in the land to her and her sister in consideration of their paying annually $10 each to their mother, which the plaintiff had paid to the time of the trial and would in the future continue to pay; that on the 23d of November, 1903, her mother had the county surveyor to make the division of the land, and the land in dispute was assigned to the plaintiff, and all agreed to the division; that soon after this division was made she went into possession of the land in dispute, and is now in possession, and has paid the taxes and made valuable improvements thereon. She testified that her mother gave her "the deeds, that deeds might later be made to plaintiff, and plaintiff is still in possession of said deed." The defendants introduced evidence...