Durden v. Clack

21 S.E. 521, 94 Ga. 278, 1894 Ga. LEXIS 65

• Court: Supreme Court of Georgia
• Decided: August 14, 1894
• Status: Published

Opinion

Simmons, Justice.

The summary remedy provided for in section 4072 of the code for the ejection of intruders, cannot be used for the purpose of trying title to land. It can only be used in cases where an intruder entei’s upon the land without claiming in good faith a right to its possession, .and refuses to abandon the same. If one sells land to •another and makes a conveyance to him, and afterwards refuses to give, up the possession, he cannot be removed, under this section of the code, as an intruder. In such ■case the purchaser must resort to some other remedy. If the vendor yields possession and afterwards re-enters, this section is applicable. It does not clearly appear from the evidence in this case that Miss Durden ever went out of actual possesson of the land. It was incumbent on the plaintiff to show that she did. Having failed to show this, the plaintiff was not entitled to a verdict, and the court erred in overruling the certiorari.

2. Under section 295 of the code, the county court has jurisdiction to try and determine applications for the eviction of intruders, and it would be no ground to ■dismiss, a proceeding for this purpose that the evidence showed the plaintiff’s remedy was by ejectment; but ■such evidence would require an adjudication in favor of the defendant on the merits. ■ Judgment reversed.