Rubsam v. Cobb
| Decision Date | 26 February 1890 |
| Parties | Rubsam. v. Cobb. |
| Court | Georgia Supreme Court |
Injunction.
A grantor, contending that he had reserved a strip 80 feet wide over the granted land, as a way to his other premises, but that the reservation had been omitted from the deed by mistake, tore down a fence erected by the grantee across the 30-foot strip. The grantee then filed her petition, alleging the insolvency of the grantor, and praying for an injunction. The grantor answered, setting up the mistake in the deed, and the insolvency of the grantee, and praying for a reformation of the deed, and for an order restraining the grantee from interfering with the 80-foot strip. On the hearing, the evidence was conflicting, both as to the alleged mistake in the deed and the insolvency of the grantor; but no evidence was offered as to the solvency or insolvency of the grantee. Held, that the trial judge did not abuse his discretion in issuing a temporary injunction against the grantor, not to take effect if he executed a bond for the payment of all damages that the grantee might subsequently recover, and in issuing an unconditional temporary injunction against the grantee.
Error from superior court, Sumter county; Fort, Judge.
The official report referred to in the opinion is as follows:
Mrs. M. J. Rubsam, by her petition, alleged that she was the owner of a certain tract of land in Americus, being the south-east corner of afour-acre tract bounded on the north by said tract, on the east by Reese street, on the south by Church street, and on the west by the land of Julia Robin son, colored. Petitioner purchased her lot from Robert E. Cobb on January 30, 1889, and the description given above is the description given in the deed made to her by Cobb. Notwithstanding this sale to her by Cobb, Cobb now claims that he has reserved from the land so sold to her a strip of 30 feet wide, lying between the land she purchased and the land owned by Julia Robinson; Cobb pretending that he reserved this strip for the purpose of opening up a street through the land. Cobb has repeatedly threatened to tear down petitioner's fence and open up the street, in order that by means of it he might open up the four-acre tract belonging to him; and on the 9th of July, 1889, Cobb began the work of tearing down the fence, and, notwithstanding her remonstrances, has torn it down, and has begun grading the land and plowing it for the purpose of opening up the street, and has threatened to continue this work. He has damaged her $50 by the destruction of her fence and the malicious acts aforesaid, and the expense to which she has been put thereby. He is totally insolvent, and he threatens to tear down the fence as often as petitioner may erect it, and to exercise ownership and authority over it. Wherefore she prays for injunction, and an accounting to her for the $50 damages, as well as for general relief, etc. Cobb answered that he made the trade for the land with Rubsam, who claimed to be acting for his wife, and when the deed was made it was made to her at the request of Rubsam. He sold the land, with the western boundary an alley, and at the time of the sale it was clearly understood between the parties that a certain plank fence that ran north and south was to be the west line, and that there was an alley or a street on the west side of said fence, which was not then thrown open, but was on the land of Cobb. Rubsam, acting as agent for his wife, offered to buy this strip from Cobb after the trade was made, and Cobb refused to sell it, he having other land, and it being necessary to have the alley to have a way to his other land. The deed was drawn by one A. C. Bivins, and, by mistake shows the western boundary to be the land of Julia Robinson, and Cobb did not notice this mistake until after the deed was executed and delivered. As soon as he found it out he applied to Rubsam to have it corrected, and although Rubsam knew of the mistake, and so admitted, herefusedto correct it. After the making and delivery of the deed, Rubsam has treated the fence as the line on the west side, and has admitted to several persons that it was the line. Although Cobb did not know it at the time of said sale, there were four persons interested in the land he sold to Mrs. Rubsam, and the land was to be divided into four equal parts, which was done after the deed was made, taking the plank fence as the west line, and Mrs. Rubsam taking the west lot, the four persons going into possession of the land as thus divided. Cobb is amply solvent. Rubsam, as agent for his wife, went in the night-time and placed a wire fence around the strip without the consent of any one. knowing that he had no right to do so. Mrs. Rubsam is wholly insolvent, and inview thereof, and of the mistake in the deed, Cobb prays that...
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