O'Quinn v. McClelland
O'Quinn v. McClelland
Opinion of the Court
O’Quinn filed a petition for injunction against Coleman as administrator of the estate of W. H. McClelland, and three of the lieirs at law of McClelland, praying that the defendants be enjoined from interfering with petitioner’s possession of described land to' which he claimed title, from tearing
We think the direction of the verdict in favor of the defendants was authorized by application of the rule stated in Fender v. Gardner, 153 Ga. 460 (112 S. E. 368), where the opinion was delivered by Mr. Justice Hines; and where this court held as quoted in headnote 1, citing Ault v. Meager, 112 Ga. 148 (37 S. E. 185); McCook v. Crawford 114 Ga. 337 (40 S. E. 225); Jones v. Cliett, 114 Ga. 673 (40 S. E. 719); Downing v. Anderson, 126 Ga. 374 (55 S. E. 184). No possession was shown by Mrs. Elitha McClelland under the deed from John W. Murrow or otherwise; and in her depositions she disclaimed ever having had any interest in the land involved. So the first possession shown under the chain of title of the plaintiff was that of Lottie Bell Tidwell, whose deed from Elitha McClelland was executed on July 3, 1936, at which time it appears she went into possession. No evidence was offered to show that the plaintiff was ever in actual possession of the land as to which an injunction against trespass was sought, and under the Fender case, headnote 2 (supra), he was not entitled to maintain an action of trespass, citing Flannery v. Hightower, 97 Ga. 592, 602 (25 S. E. 371). See Downing v. Anderson supra. As to Coleman, administrator, an action for land or suit in ejectment, and not a petition for injunction, was the appropriate remedy to test the plaintiff’s title. The court did not err in overruling the motion for new trial.
Judgment affU'med.
Reference
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- O'QUINN v. McCLELLAND
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