Crider v. Southern Railway Co.

141 S.E. 915, 37 Ga. App. 727, 1928 Ga. App. LEXIS 583

• Court: Court of Appeals of Georgia
• Decided: February 18, 1928
• Docket: 18160
• Status: Published

Opinion

•Stephens, J.

1. One in possessidn of land and with an equitable interest , therein as owner, subject to his deed to secure a debt, has such an interest in the property that he can maintain an action for damage thereto. Especially is this true where the holder of the legal title, after the institution of the suit, reconveys the legal title to the plaintiff. Fulton County v. Amorous, 89 Ga. 614 (3) (16 S. E. 201); Towaliga Falls Power Co. v. Washington, 136 Ga. 397 (71 S. E. 731); City of Atlanta v. Callaway, 137 Ga. 495 (73 S. E. 736); Mack v. Augusta Belt Line Railway Co., 28 Ga. App. 816 (113 S. E. 66); Fender v. Lee County, 31 Ga. App. 604 (121 S. E. 843).

Decided February 18, 1928. John 0. Owen, Scott & Hornbuckle, 0. C. Hancock, J. W. Bow-den, for plaintiff. McDaniel & Neely, for defendant.

2. This being a suit wherein the plaintiff seeks to recover damages for the destruction of a barn upon her premises by lire which it is alleged was negligently caused by the emission of sparks from a railway train of the defendant, and it appearing from the petition that at the time of the injury complained of the plaintiff was in possession as the owner of the equitable title in the premises, subject to a deed conveying the title to a third person to secure a debt, and it appearing from an amendment to the petition that the holder of the legal title, after the institution of the suit, reeonveyed the title to the plaintiff, and the allegations in the petition otherwise setting out facts from which it could be inferred that the injury complained of was caused by negligent acts of the defendant, the petition as amended, in both counts, set out a cause of action, and the court erred in sustaining the general demurrers to both counts of the petition.

Judgment reversed,.

Jenhvns, 1‘. J., wnd Bell, J., concur.