Swindell & Co. v. Saddler

1. Where a plaintiff seeks to enjoin the cutting of timber, under the Civil Code, § 4927, and the abstract attached to his petition shows that he has not the perfect paper title prescribed by that section, he may amend by alleging that the defendant is insolvent and that the damages threatened will be irreparable. 2. Where in such an action it appears that the plaintiff has signed an unambiguous contract for the sale of the timber in dispute, and no effort is made to reform the instrument on the ground that it does not speak the real agreement between the parties, it is error to grant the injunction prayed.

Injunction. Before Judge Spence. Decatur superior court. October 17, 1904. Saddler sought to enjoin Swindell & Company from cutting timber on a tract of land alleged to be his property. He did not allege that the defendants were insolvent, or that the damages would be irreparable, but apparently relied upon the perfect paper title prescribed by the Civil Code, §4927, as the basis of an action to enjoin the cutting of timber. The abstract of title attached to his petition was, in so far as the purposes of this suit are concerned, defective, in that parol evidence was necessary to show that one of the grantors therein named was the heir at law pf his predecessor in title. See Powell v. Brinson, 120 Ga. 36, and cases cited on page 38. A temporary injunction was granted; aud the defendants filed a motion in the nature of a demurrer to the petition, praying that this injunction be dissolved. Two amendments to the petition were then allowed over the objection of the defendants. In one of these amendments it was alleged that the defendants do not claim title to the timber in dispute, “ except under and through a certain receipt, which plaintiff gave defendants, for the sum of ten dollars, which was part payment of a contract price of thirty dollars, which said defendants were to give plaintiff for certain .trees of a certain character” on the land involved m this suit; that the plaintiff did not read the paper so signed by him, for the reason that he could not read, but relied entirely upon the statement of the defendants’ agent, with whom the transaction was had, as to its contentsthat the agreement between the parties was that only the “ big yellow-hearted trees” were to be sold, the rail timber being expressly excepted from its operation; that the defendants went upon the land and proceeded to cut all the timber of every description, “in fact, more timber than the agreement called for;” and that the defendants are hopelessly insolvent and unable to respond in damages. In the other amendment it was alleged that the damage to the plaintiff would be irreparable. The defendants filed answers to the petition and to the amendments. They admitted that they claimed the timber under a contract with the plaintiff, but denied that that contract embraced only the timber of a certain character on the land. They also denied all the material portions of the petition and the amendments.' Attached to the answer as an exhibit was a copy of the contract in question, which was as follows: “Feby. 21st, 1899. State of Georgia, County of Decatur. Received of E. Swindell & Co. the sum of $10.00 dollars, the same being part of the purchase-money for the timber on lot of land No. 305, the east side, 110 acres timber in the 16th district of said county, and also for the right to construct and build upon the said lands, at any time, tramroads, railroads, and wagon-roads, and such other devices as they may see fit. The deed to the said timber and said privileges to be delivered as soon as the title to said land can be examined and perfected, and the balance of said purchase-money to be paid when the deed is so made and delivered by Moses Saddler to the said E. Swindell & Co., as follows: Balance $20.00 to be paid at the commencement of cutting timber. In the event no deed is made I agree to refund the said part of the purchase-money so paid by the said-on demand; it being understood and agreed that it is optional with the said E. Swindell & Co. to accept the said title to the said property and pay the purchase-money therefor.” This writing was signed by Saddler by his mark, and was attested by two witnesses, one a justice of the peace; and it was in evidence on the hearing, and its execution admitted by the plaintiff. The court granted an order enjoining the defendants, as prayed, until the final hearing. The defendants except to this order, the allowance of the amendments to the petition over their objection, and the refusal of the court to dissolve the injunction as prayed.