Waters v. Lewis

• Decision Date: 15 March 1899
• Citation: 32 S.E. 854,106 Ga. 758
• Parties: WATERS v. LEWIS.
• Court: Georgia Supreme Court

32 S.E. 854

106 Ga. 758

WATERS v. LEWIS.

Supreme Court of Georgia

March 15, 1899

Syllabus by the Court.

1. A mere verbal claim to, or assertion of ownership in, property is not such a cloud upon the title of the owner as can be removed by equitable proceedings.

2. Except in a case specially provided for by statute, equity will not interfere to restrain a trespass, unless the injury is irreparable in damages, or the trespasser is insolvent, or there exist other circumstances which, in the discretion of the court, render the interposition of this writ necessary and proper.

Error from superior court, Chatham county; R. Falligant, Judge.

Action by Sarah Lewis against David Waters. Judgment for plaintiff. Defendant brings error. Reversed.

Alexander & Hitch, for plaintiff in error.

Gignilliat & Stubbs, for defendant in error.

FISH J.

Sarah Lewis brought her equitable petition against David Waters, in which she alleged, in substance, that she was the owner and in possession of a certain parcel of land in the city of Savannah; that she purchased the land from one Eva Johnson who was then the true owner thereof, and had paid the full amount of the purchase money; that the purchase money was paid in installments, under an agreement that, upon the completion of the payments, Eva Johnson would make her a sufficient deed of conveyance to the property; that such conveyance was never made; that, subsequent to such purchase, Eva Johnson had intermarried with David Waters, and died, and after her death, the lot being vacant, David Waters, knowing that petitioner had paid for the same and was entitled to a deed thereto, and in fraud of her rights, set up a claim to the land, as the sole heir at law of his deceased wife, Eva, and had a house erected thereon, and actually took possession of the premises under his pretended and fraudulent claim; that petitioner, from time to time, made demand upon him to surrender the property, but he refused to do so, and continued to claim the same until April, 1895, when, the premises being vacant, petitioner took possession thereof and had since retained possession. Plaintiff further averred that "said claim of David Waters to the land is fraudulent, and without foundation in fact; that the said claim is such that it operates to cast a cloud upon her title, and has been and is being vexatiously and injuriously used against her by the said David Waters, who has instituted proceedings, both civil and criminal, against her for forcible entry and detainer; that the witnesses within whose knowledge the facts within set forth rest are of great age, and their evidence is likely to be lost by the death of said witnesses; and...