Baldwin v. McLendon

138 S.E. 775, 164 Ga. 387, 1927 Ga. LEXIS 198

• Court: Supreme Court of Georgia
• Decided: June 23, 1927
• Docket: No. 5578
• Status: Published

Opinions

Bussell, C. J.

Baldwin brought his petition against McLendon, alleging that he was the owner of a described tract of land in Terrell County, known as the “S. W. Cozart place,” containing 333 acres, more or less, under deed from Mrs. S. Y. Cannon of date November 1, 1906, conveying the premises to petitioner; that since receiving the’deed he had been in open, notorious, exclusive, quiet, and peaceable possession of said tract of land; that recently the defendant McLendon undertook to negotiate with petitioner for the timber which is on a portion of said land, bnt petitioner notified him he did not care to sell the timber, and declined to enter into any contract with him; but that nevertheless McLendon was about to enter possession of the premises and to cut certain described timber thereon. He prayed that McLendon be enjoined from cutting the timber. The case has hitherto appeared in this court, and all material facts are stated in Baldwin v. McLendon, 161 Ga. 636 (131 S. E. 361). When the case was here before, the judge of the lower court had charged, just as in the trial now under review, that the burden of proof was upon the plaintiff:. This court then held: “The defendant’s claim of title under the lease executed by plaintiff was an admission of plaintiff’s title, which, in connection with the further admission of an intention to cut and remove the timber, admitted a prima facie case: It was therefore erroneous to charge the jury that the burden of proof was upon the plaintiff.” Upon this single ground the case was sent back for another trial. We think the principle ruled was sound; but even if it can be conceded that such is not the ease, it is nevertheless the law of this case.

The second and third headnotes do not require elaboration. Judgment reversed.

All the Justices concur.