Ivey v. Hammock

68 Ga. 428

• Court: Supreme Court of Georgia
• Decided: February 15, 1882
• Status: Published

Opinion

Jackson, Chief Justice.

This case arises on a possessory warrant brought by the defendant in error against the plaintiffs in error to recover possession of a steam saw-mill, which the latter took from the former fraudulently and without lawful warrant and authority. The justice of the peace remanded the mill to the possession of the defendant in error, and on certiorari the superior court affirmed the judgment, and ;the plaintiffs in error excepted.

1. The mill was in the peaceable and legally acquired -possession of the defendant in error, when in his absence to procure counsel, on the false Representation to him that an officer of the law would soon be present to dispossess him, and on looking up the road for the officer every moment, he was induced to leave, and the plaintiffs in error took it out of his possession, and out of the county of Chattahoochee into the county of Marion, in his absence produced by these fraudulent representations and acts by plaintiffs in error.

This is his side of the case, and it is found by the magistrate and the court below to be the truth. There being evidence enough to support it, this court does not interfere unless the law be violated in some material point. 56 Ga., 525.

The issue is not the right of property or of possession, but in whose lawfully acquired, quiet and peaceable possession it last was. Code, §4035; 22 Ga., 319; 30 Ib., 209; 63 Ib., 745. There seems to be no doubt that the property was last in the quiet and lawful possession of the defendant in error.

2. But it is insisted in argument here that both sides are or were in possession, as the facts make a partnership, and in such a case this writ will not lie. The reply is, first, that according to the case made by the defendant in error, he rented the mill, etc., and he was a tenant and not a partner ; and, secondly, that if a partner, on the terms of the partnership, he must have the possession, and the exclusive possession, in order to carry out the partnership contract, as set up by the evidence of the plaintiffs in error themselves. For he had the entire management, the duty to repair, to run the mill, to do all the work, and when they took it away from him the effect was to put it out of his power to contribute his share to the partnership common stock — his work, skill, labor and supervision being set off against the material, mill, etc., furnished by the other side. Therefore, though it may be that ordinarily one partner cannot dispossess another, under the facts here, he may.-; or the very terms of the contract of partnership necessarily devolve possession upon him, and fix it in him. If he has violated those terms in other respects, their remedy is not by wresting the possession of the property from him by force or fraud, but by recourse to regular suit, as prescribed by law.

There was no error, therefore, in remanding the proper ty to the possession of defendant in error on his giving bond as fixed by law, and this was required by the order of the magistrate, and the affirmance of the court below.

Judgment affirmed.