Opinion
14251.
SEPTEMBER 19, 1942.
Equitable petition. Before Judge Mitchell. Dade superior court. May 17, 1942.
Gleason Collins, for plaintiff in error.
J. M. C. Townsend and McClure, Hale McClure, contra.
1. Where a plaintiff seeks to enjoin a trespass on land, on the ground that the defendant is insolvent and that the damages will be irreparable, an unqualified allegation that he is the true owner of the land is sufficient to withstand a demurrer, and he is not required to attach an abstract of title.
2. The object of attaching an abstract in such a case is not to show title on the face of the pleadings, but only to give notice of what will be relied on at the trial; and where the averment of title contained in the pleadings is not limited to that as shown by an attached abstract, the petition is not rendered demurrable by defects in the abstract.
3. Title through a receiver's deed can not be shown without producing in connection therewith evidence showing that the receiver was authorized to execute the deed. In the trial of one case a court is not authorized to take judicial notice of its minutes of the receivership proceedings in another case, for the purpose of determining for itself that the receiver was authorized to execute a deed. The plaintiffs in the instant case having failed to show title through the receiver's deed, an essential link in their chain of title, the court erred in directing the verdict in their favor.
4. The court did not err in allowing the plaintiffs to introduce in evidence a deed describing the named grantors as "being all the heirs at law of M. P. Kenney," without requiring a showing that the grantors were the sole heirs of M. P. Kenney, since M. P. Kenney was a stranger to the chain of title relied upon by the plaintiffs. The reference in the deed to M. P. Kenney was merely descriptive of the grantors.
No. 14251. SEPTEMBER 19, 1942.
Grady Bradford and Cecil McKaig filed a petition against Walter D. Gray, seeking to enjoin an alleged trespass. The petitioners alleged, that they are the owners of lot of land 112 in the 11th district and 4th section of Dade County, Georgia, with the exception of ten acres in the southeast corner of the lot, to which the defendant has a deed; that the defendant has no right, title, or interest to any portion of the lot except the ten acres referred to; that the defendant, with full notice and knowledge of the petitioners' ownership and right to possession of the described land, fenced some forty or fifty acres thereof; that when the petitioners discovered the fence they went upon the property and removed it; that the defendant is again erecting a fence enclosing some forty or fifty acres of petitioners' land; that the petitioners demanded that the defendant desist from further trespassing on their land, but he has persisted in continuing the acts of trespass and has threatened to continue them in the future; that the defendant is insolvent; and that petitioners have no adequate remedy at law, because of the insolvency of the defendant, and because of the multiplicity of actions which would be required to bring an action at law for damages for each separate trespass.
The defendant, after demurring generally and specially, answered, denying the allegations of the petition, and asserting that he had a prescriptive title to the land in question. On the day set for trial of the case, the plaintiffs by amendment attached to their petition "an abstract of title to the land claimed by" them. The court overruled the demurrers, and the defendant excepted. He moved for a continuance on the grounds, (a) that a material witness was absent, and (b) that he was surprised and rendered less prepared for trial by the amendment setting up an abstract of title. After hearing evidence on each of these grounds, the court refused to grant a continuance, and the defendant excepted. He moved to strike the amendment to the petition, on the ground that the attached abstract of title did not show (a) the type of conveyances represented thereby, (b) the date of the instruments, (c) the date of record, (d) whether or not the instruments were properly executed, and (e) whether or not they had been recorded. The defendant excepted to the overruling of this motion.
Beginning with a warranty deed from Georgia Minerals Company to B. W. Newsom, dated October 18, 1923, the plaintiffs introduced in evidence a number of conveyances comprising the chain of title under which they claimed the land in question. In addition to testimony to show the commission of the trespass alleged in their petition, they produced a lease from B. W. Newsom to the defendant, dated September 8, 1925, covering the land in dispute, and other evidence to show that the defendant had held possession of the land as a tenant of B. W. Newsom, one of the predecessors in title of the plaintiffs. The defendant introduced no evidence. He excepted to the direction of a verdict for the plaintiffs.
1. "In a petition for injunction against the commission of a trespass on land, upon the ground that the defendant is insolvent and the damages will be irreparable, it is essential for the plaintiff to allege title in himself or actual possession of the land. In such a case the plaintiff is not required to attach an abstract of his title, but an unqualified allegation that he is the true owner of the land is sufficient to withstand a demurrer." Chancey v. Johnson, 148 Ga. 87 ( 95 S.E. 975). "An allegation that a party is the owner of specified realty is an allegation of an ultimate fact and not a conclusion of law." Domin v. Brush, 174 Ga. 32 ( 161 S.E. 809). The instant petition, unqualifiedly alleging that the plaintiffs owned the land on which the acts of trespass were being committed, was sufficient to withstand the demurrer on the ground that the plaintiffs' title was not shown thereby. See Fletcher v. Fletcher, 123 Ga. 326 (2) ( 51 S.E. 418). No other grounds of demurrer are insisted on in this court.
2. By amendment the plaintiffs attached to their petition an abstract of title. The object of attaching an abstract in such a case is not to show title in the plaintiff on the face of the pleadings, but only to give notice of what will be relied upon at the trial, and defects in the abstract will not render the petition demurrable. Yonn v. Pittman, 82 Ga. 637 ( 9 S.E. 667); Bentley v. Phillips, 171 Ga. 866 ( 156 S.E. 898). However, if the abstract is incorporated in the petition, or if the plaintiff limits his claim of title to that shown by the attached abstract, the petition is demurrable if the abstract fails to show a good chain of title into the plaintiff. Chancey v. Johnson, supra; Kirkpatrick v. Faw, 180 Ga. 764 (4) ( 180 S.E. 727). In the instant case the plaintiffs' petition contained an unqualified averment that they owned the land, and there was nothing in the amendment to show that this averment was limited to the title as shown by the attached abstract. The court properly overruled the defendant's motion to strike the petition on the ground that the abstract was defective. Neither did the court err in refusing to strike the abstract itself. As shown in the preceding division of this opinion, the plaintiffs were not required to put the defendant on notice as to what evidence would be relied on to show title. The defendant then can not complain if the plaintiffs in giving such notice do not give a detailed account of each conveyance referred to in the abstract. See also Peeples v. Rudulph, 153 Ga. 17 ( 111 S.E. 548); Allen v. Potter, 153 Ga. 24, 27 ( 111 S.E. 549).
3. As a part of their chain of title the plaintiffs introduced in evidence a quitclaim deed from Wilson Hardy, "receiver of the Newsom property, by appointment of the superior court of Dade County, Georgia, in the case of Graham Wright, assignee, vs. B. W. Newsom," to Mrs. M. P. Kenney, Don M. Kenney, and O. H. P. Kenney. The defendant objected to the introduction of this deed, because the receiver's authority to execute it was not shown in connection therewith, and he assigned error on the ruling admitting the deed in evidence over the objection. A receiver has no authority to dispose of property in his hands, in the absence of an order or decree authorizing the same from the court under which he holds his appointment. Code, § 55-307. It is also well established that where an order of court is necessary to authorize a sale, title through such a conveyance can not be shown without producing the order of court in connection with the deed. Durden v. Phillips, 166 Ga. 689 ( 144 S.E. 313); Porter v. LaGrange Banking Trust Co., 187 Ga. 528 (2) ( 1 S.E.2d 441), and cit. However, counsel for the defendant in error make the contention that the court was authorized to take judicial notice of its own minutes in the receivership case referred to in the deed, and satisfy itself that the necessary order had been passed. There is nothing in the record to indicate that the court purported to take judicial notice of its own minutes in the receivership case; but even if it had done so, such action would have been unauthorized. In the trial of one case the court can not take judicial notice of the record in another case in the same court, without its formal introduction in evidence. Glaze v. Bogle, 105 Ga. 295 (3) ( 31 S.E. 169); O'Connor v. United States, 11 Ga. App. 246 (4) ( 75 S.E. 110). It follows that the court erred in admitting the receiver's deed in evidence over the defendant's objection. Since this deed was an essential link in the plaintiffs' chain of title, the directed verdict in favor of the plaintiffs was unauthorized.
4. The defendant objected to the introduction in evidence of a deed from Mrs. M. P. Kenney, Don. M. Kenney, and O. H. P. Kenney, "being all of the heirs at law of M. P. Kenney," to Grady Bradford, on the ground that no evidence was introduced to show that M. P. Kenney was dead, that he left no debts, etc. Under the circumstances of this case the defendant's objections were without merit. The chain of title relied on did not come through M. P. Kenney, and the evidence does not show that this person ever had any interest in the land. The grantors in this deed were the grantees in the preceding deed of the chain of title, and the fact that they described themselves as "the heirs at law of M. P. Kenney" can in no wise be construed to limit the effectiveness of their deed for the purpose of conveying the title which was shown to have passed to them.
Since the judgment is reversed on another ground, and the questions raised by the motions for continuance are not likely to occur on another trial, no ruling will be made thereon.
Judgment reversed. All the Justices concur, except Atkinson, P. J., who dissents.