Cook v. Georgia Land Co.

48 S.E. 378, 120 Ga. 1068, 1904 Ga. LEXIS 799

• Court: Supreme Court of Georgia
• Decided: August 12, 1904
• Status: Published

Opinion

Lamar, J.

(After stating the facts.) The Georgia Land Com-, pany instituted proceedings to dispossess Tansy Cook from land which the company had purchased at a tax sale. She filed an equitable petition seeking to enjoin the dispossessory warrant, contending that until after the expiration of the redemption year, the company, as purchaser , at a tax sale, did not have such an estate as would entitle it to this relief. Pending the suit the twelve months expired. Thereupon the company, by a cross-bill, prayed for a decree establishing its title. This was resisted by the plaintiff, who contended that the company could only recover on the title as it existed at the time of the institution of the dispossessory proceedings. In actions of ejectment, or cases involrfing title and right of possession, the question primarily is whether the plaintiff had a right to recover at the commencement of the suit. If he did, he might be entitled to costs, damages, or mesne profits because of that right, even though pending the trial something occurred which made it impossible for him to recover the premises in dispute, or to have a writ of possession. And had there been any claim for mesne profits or cost due to this plaintiff, she would not have been deprived thereof merely because, pending the action, the defendant’s inchoate rights had ripened into perfect title. But while these incidental features might have prevented the plea of puis darrein continuance from operating as a complete bar, it would not destroy the company’s right to set up this title for the purpose of preventing her from retaining possession of the premises in dispute. A defendant in any case may, by a special plea, set up matter of defense which has arisen since the institution of the suit, or since his last plea. Accord and satisfaction, release, discharge in bankruptcy since the filing of the, petition, may be thus pleaded. And if, pending an action for the recovery of the land, the title and right of possession have passed from the plaintiff and become vested in the defendant, this fact may be set up by special plea of puis darrein continuance. Alexander v. Collins, 7 Ala. 480; Hayden v. Ahern, 9 Gray, 438. Such is the rule at law. In equity it is especially applicable, in view of the policy to do complete justice and avoid a circuity of actions. The court properly allowed the amendment, and did not err in directing a verdict for the defendant. Civil Code, §§ 4833, 4837.

Judgment affirmed.

All the Justices concur.