1. It is insisted by counsel for plaintiffs in error that the plaintiff below, in his application for injunction, did not proceed according to the' provisions of § 4927 of the Civil Code; and that, no insolvency of the defendants and no irreparable damages being shown, the injunction should have been denied. It was manifestly the intention on the part of the petitioner to bring his case within the provisions of the section above cited, which declares: “In all applications to enjoin the cutting of timber for sawmill purposes, etc., it shall not be necessary to aver or prove insolvency, or that the damages will be irreparable.” It is true there is not attached to the petition an abstract of title as required by that section. The petition,, however, alleges that both plaintiff and defendants claim under a common grantor, the defendants under a lease which had expired, and that therefore it ivas unnecessary to attach an abstract of title. The answer denied the title of the plaintiff and alleged a perfect title in the defendants. It seems upon the issue thus made the case ivas heard before the judge. It nowhere appears in the record that any objection was made to the plaintiff’s petition for want of sufficiency, or that the respondents ever urged that the injunction should not he granted on account of this defect in the petition. It is true the court could not have ¡oassed upon a formal demurrer to the petition in vacation, but the grounds of such demurrer could have been urged in the answer as a 'reason why the application should have been refused. But had the question been presented to the court, and the contention of plaintiffs in error been sustained, ass it doubtless would have been, the defect complained of could readily have been cured by amendment. It is fair, from the record before us, to treat this technical defect as having been waived by the plaintiffs in error on the hearing below. It should at least have appeared that such a question was presented to the trial judge, before we would be authorized to reverse his judgment simply on account of an amendable defect in the plaintiff’s pleadings; especially in view of the fact that the
2. It appears from the record that all the lands involved in this litigation originally belonged to H. A. and H. P. Mattox. On September 27, 1881, they conveyed to one Reppard all the timber, logs, and growing trees, suitable for sawmill purposes and being manufactured into lumber upon certain lots of land, describing the same by number, 'district and county. In this deed there was no limitation as to the time in which the grantee, or his heirs and assigns, should have a right to use the timber designated. On the same day a conveyance was made by Ii. A. and H. P. Mattox to Reppard to timber on certain other lots of land, and directly following the granting clause was this sentence: “This lease to expire ten years from the time said Reppard begins cutting said timber.” On January 23,1883, there was a like conveyance between the same parties to timber on other lots of land, described in like manner, and following the granting clause was the statement: “ And it is hereby covenanted, understood, and agreed by and between the parties to this indenture, that the party of the second part, his heirs and assigns, are limited to the period of ten years time in which to cut and remove the timber, logs, and trees, suitable for sawmill purposes or being manufactured into lumber, upon the lots of land aforesaid, from the time they commence to cut and remove the same therefrom.” The injunction was refused as to the property described in the deed first mentioned above, but was granted as to that described in the last two deeds ;■ and to this granting of the injunction the defendants except. It is insisted by counsel for plaintiffs in error, that the clauses imposing limitations upon the right of the defendants, to cut timber, in the last two deeds referred to, are repugnant to the operative words of the grant, and that therefore the former words should prevail, and the limitation clause should be treated as of no effect at all. § 3607 of the Civil Code provides: “If two clauses in a deed be utterly inconsistent, the former must prevail, but the intention of the parties, from the whole instru
3. It was further insisted by counsel for plaintiffs in error,, that, the lands being described severally, the license was several.-, as to each lot, and the exercise of the license upon one lot could not be construed as extending to another tipon.which the licensee ■ had not in fact entered. The cáse of Barber v. Shaffer, 76 Ga. 285, was cited by counsel for plaintiffs in error, where it was held that when a deed did not convey or purport to convey .one tract of land, but several distinct and separate lots of'forty acres', each, without any intimation of the sale of all as one tract, possession of one of the lots named did nobby construction extend over the others, under .the deed as color of title. We do not-think' the case in point. In the first.place the question there..was one of prescription, a matter regulated by the statute, and • not in any wise dependent upon the contract or intention of the ^ parties. The case at bar is one- of intention .to be gathered from the terms of a written contract, and does- not-át all relate to a . prescriptive title. In Johnson v. Simerly, 90 Ga. 612, it was ■■ ruled, even upon the subject of a prescriptive title, that where.a deed conveyed five contiguous lots;, describing -them by their ■ numbers and naming the aggregate quantity of land conveyed, the whole, although called in the deed “five-tracts or lots of ' land containing 202 1/2 acres each,” may be considered asoné entire tract, the boundaries of which are the original lines on the margins of the tract as established by the State when the .- lots were laid off in the original survey. On-page 615, Simmons, Justice (now Chief Justice), in delivering the opinion of ' the court, distinguishes that case from the one cited in 76 Ga. above, and says: “ That decision does not mean, however, that where the land described is in fact one tract, it must in so many words be called one tract. In that.case, the .lots were not adjacent, but some of them were separated from the others by in- ■ tervening lots. ” It is not pretend ed' in .this case that these lots ■. of land embraced in each deed do i not lie in one body. The ■ only apparent difference between these deeds and the one men- ■ tioned in 90 Ga. is, that the latter- designated the. aggregate number of acres. But it will be seen.that the decision of the-..
4. On February 22,1895, as appears from the official report, H. A. and Ií. P. Mattox, who were then the owners of the land in question, subject to the lease of the timber they had ■previously made thereon, conveyed the land, under a power of .sale contained in a mortgage thereon, to the Peacock & Hunt Naval Stores Company. This mortgage was recorded March 13, 1895. By virtue of the power of conveyance the property ■passed from the mortgagee to one Baldwin by a deed dated ^September 12, 1895, and Baldwin conveyed the property to the plaintiff by a deed dated July 22, 1896. This constituted the •chain of the plaintiff’s title. The defendants claimed ultimately from the same source, by virtue of the lease from H. A. and IT. P. Mattox to Reppard, and by successive convey•iinces from ■ his grantees down to the defendants. As .before .seen, that lease had expired upon the filing of the petition, .and therefore, so far as the rights conveyed by the lease were ■concerned, the defendants had no title and were mere trespass-ers. It is' insisted, however, by counsel for plaintiffs in error, that under successive conveyances from grantees under this lease the property finally passed to D. B. Paxton and H. P. Mattox.' FI. P. Mattox was one of the original owners, and it is urged that inasmuch as' there was a receiver’s sale under a creditor’s petition filed October 17, 1893, against D. B. Paxton and H. P. Mattox, all the interest of IT. P. Mattox as a tenant in common to the land itself passed by virtue of that sale, and the defendants, holding under purchasers at that sale, acquired such interest of H. P. Mattox, and an absolute injunction was
5. As to the rights acquired by the grantee and his successors in title under the first deed from H. A. and H. P. Mattox, mentioned in the official report, the case is, however, quite different. This deed is without any limitation whatever as to the time for exercising the license and privileges thereby conveyed. Indeed it stipulates in express terms that it conveys all “ of the timber, wood, logs, and growing trees, suitable for sawmill purposes and being manufactured into lumber, now upon or that may hereafter grow upon all or any of the said lots of land;” and also conveys to the grantee, his. heirs and assigns, the right and privilege, “now and at any and all times hereafter,” to enter upon the lands for the purpose of cutting such timber. If it
Judgment on both bills of exceptions affirmed.