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In Braswell v. Palmer, 191 Ga. 262 (4) (11 S.E.2d 889), this court held: "A mandatory injunction is not permissible in this State. The court erred in granting an interlocutory injunction the effect of which, by its general terms as well as its express language, restrained the defendants `from remaining on said premises and from keeping his [their] goods on said premises, until further order of the court.
Summary of this case from Bush v. City of GainesvilleOpinion
13348.
NOVEMBER 29, 1940.
Injunction, etc. Before Judge Fortson. Walton superior court. March 16, 1940.
Roberts Roberts, for plaintiffs in error.
A. M. Kelly and J. C. Knox, contra.
1. The purchaser at a sale for county taxes may convey the property before the expiration of the redemption period. In such case the vendee acquires "an inchoate or defeasible title, subject to the right of the owner to redeem within the time prescribed by the statute," which passed to his vendor under the tax sale. Bennett v. Southern Pine Co., 123 Ga. 618 ( 51 S.E. 654); Newsom v. Dade County, 177 Ga. 612, 615 ( 171 S.E. 145); Elrod v. Owensboro Wagon Co., 128 Ga. 361 ( 57 S.E. 712); Morrison v. Whiteside, 116 Ga. 459 ( 42 S.E. 729).
2. Where county commissioners authorize a conveyance of land bought in by the county at a tax sale, but fail to put the order of authorization on the minutes, as required by the Code, § 91-602, it is competent for them, at a subsequent meeting of the board, to ratify the deed to the purchaser from the county, and to cause the authorization to be put on the minutes. 7 R. C. L. 946.
3. If the county commissioners authorize the sale of county land, the deed may lawfully be signed by the chairman in the name of the board. Compare Roberts v. Dancer, 144 Ga. 341 (3) ( 87 S.E. 287); County of Pulaski v. Thompson, 83 Ga. 270 ( 9 S.E. 1065); Greer v. Turner County, 138 Ga. 558 ( 75 S.E. 578); Lamb v. Dart, 108 Ga. 602 ( 34 S.E. 160); Read v. Glynn County, 145 Ga. 881 ( 90 S.E. 60).
4. A mandatory injunction is not permissible in this State. The court erred in granting an interlocutory injunction the effect of which, by its general terms as well as its express language, restrained the defendants "from remaining on said premises and from keeping his [their] goods on said premises, until further order of the court."
No. 13348. NOVEMBER 29, 1940.
1-3. Headnotes 1 to 3 deal with attacks made on the plaintiff's deed under which he claimed title. We do not find it necessary to elaborate them.
4. Exception is taken to the interlocutory injunction, on the ground that it is essentially mandatory. Our Code, § 55-110 provides that "An injunction may only restrain; it may not compel a party to perform an act." In Goodrich v. Georgia Railroad c. Co., 115 Ga. 340, 344 ( 41 S.E. 659), the court in construing this section said: "Under our Code injunction can be used only to restrain. It does not necessarily follow, however, because injunction can be used only for this purpose, that it can not be used when the effect of yielding obedience thereto would incidentally require the performance of some act, if the main purpose of the injunction is to restrain the doing of some wrongful act. It seems to us that the true meaning of the section above quoted is, that the court can not issue a purely mandatory order, but that the court can grant an injunction the essential nature of which is to restrain, although in yielding obedience to the restraint the defendant may be incidentally required to perform some act." While this construction militates against the literal universality of the words of the Code section, it was pointed out in the Goodrich case that in cases involving disputes as to the right to possession of land an injunction the effect of which would be to put the defendant out of and the plaintiff in possession would be mandatory, citing Russell v. Mohr-Weil Lumber Co., 102 Ga. 563 ( 29 S.E. 271); Vaughn v. Yawn, 103 Ga. 557 ( 29 S.E. 759); Paschal v. Tillman, 105 Ga. 494 ( 30 S.E. 870). To the same effect see Beacham v. Wrightsville Tennille R. Co., 125 Ga. 362, 367 ( 54 S.E. 157); Glover v. Newsome, 134 Ga. 375 ( 67 S.E. 935); Beck v. Kah, 163 Ga. 365, 370 ( 136 S.E. 160); Bond v. Harrison, 176 Ga. 568 ( 168 S.E. 604); Smith v. Wood, 186 Ga. 214 ( 197 S.E. 246). The decision in McKenzie v. Minis, 132 Ga. 323 ( 63 S.E. 900, 23 L.R.A. (N.S.) 1003, 16 Ann. Cas. 723), is not to the contrary in principle, because the defendant there was in possession as a mere caretaker, and his possession was held to be the plaintiff's possession.
Of course the possession referred to in the cases just cited means possession by occupancy, and does not refer to acts which injure the property or the use of it or intrude upon another's physical occupancy, but do not go to the extent of physical occupancy. See Florida Yellow Pine Lumber Co. v. Flint River c. Co., 140 Ga. 321 ( 78 S.E. 900). In the present case the evidence on the interlocutory hearing indicated that before and at the time the petition for injunction was filed the defendant Braswell was living on the land, and had through his tenants (the defendant, Roy and Claud Camp) begun to cultivate and terrace it; that Braswell had assumed dominion over the property as against the plaintiff, and had refused to allow lessees of the property from plaintiff to enter on the land. In these circumstances we think that the court erred in granting an interlocutory injunction the effect of which by its general terms as well as its express language restrained the defendants "from remaining on said premises and from keeping his [their] goods on said premises until further order of the court." The plaintiff is not without remedy in cases in which an insolvent defendant under an invalid claim of title gets into possession of the property and establishes an occupancy; for under the Code, § 55-301, when any property is in dispute and the rights of one or both parties can not otherwise be fully protected, the court may appoint a receiver to hold the property pending the final decision of the case. In such cases, the defendant, though a bona fide claimant, may be compelled to deliver the property into the possession of the receiver, pending the final adjudication of his rights. Martin v. Citizens Bank, 170 Ga. 180 ( 152 S.E. 234); Graham v. Fuller Electric Co., 75 Ga. 878; Robinson v. Vickers, 161 Ga. 52 ( 120 S.E. 63); Roberts v. Mullinder, 94 Ga. 493 ( 20 S.E. 350); Steele v. Graves, 156 Ga. 650 ( 119 S.E. 690); Atlas Savings Loan Asso. v. Kirklin, 110 Ga. 572 ( 35 S.E. 772).
Judgment reversed. All the Justices concur.