Thomas v. James , 32 Ala. 723 ( 1858 )

RICE, C. J.

An injunction will not lie, to prevent the commission or repetition of a trespass, in entering and cutting down timber, on land of which the plaintiff is in possession as owner, and has adequate remedy at law for the trespass; there appearing nothingin the case so special or peculiar as to call for that particular relief. But, even where there is a legal remedy for the intrusion, some peculiar circumstance or circumstances may exist, which demand, or, at least, authorize, the interposition of the conservative remedy of injunction. — 2 Story’s Eq. Jur. §§ 928, 929; Burnett v. Craig, at January term, 1857; Amelung v. Seekamp, 9 Gill & Johns. 468; Stevens v. Beekman, 1 Johns. Ch. R. 318; Livingston v. Livingston, 6 ib. 497; Jerome v. Ross, 7 ib. 315; N. Y. Printing and Dyeing Establishment v. Fitch, 1 Paige, 97; also, Perkins’ notes to Hanson v. Gardiner, 7 Vesey, (Sumner’s edition,) 305.

Here such circumstances do exist. The complainant is a manied woman. By the deed of her father executed in 1854, certain lands were conveyed to her, as her separate estate; and her husband, Nathan Thomas, was appointed her trustee, “ to manage said foregoing property, for the sole use and benefit of her and her heirs.” R. D. James, one of the respondents, under color of a contract which he had made with a third person, (one W. J. R. Thomas,) on the 10th February, 1853, claimed the continuing right for ten years from said last named day, to enter upon her said lands, and to cut thereon and haul away “ as much steamboat-wood, consisting in dead trees, as ho may want.” The right, thus claimed, has no foundation. It was disputed by the complainant; and a controversy thus arose between R. D. James and complainant, respecting the right thus claimed by him. Her trustee, contrary to her wishes, and to his own duty, entered into an agreement in writing with R. D. James, submitting said controversy to the arbitrament of certain named persons, wlio rendered an award, that said R. D. James, under and by virtue of said contract with "VV. J. R. Thomas, was entitled to cut and haul steamboat-wood from her said lands; “ and now said Robert D. James, Francis B. James and Samuel Boykin, (the two latter having by an agreement with the former some interest in his said contract with ~W. J. R. Thomas,) armed with said award, assert the right, and are now cutting and hauling steamboat-wood from oif said lands,” * * “and will continue so to do, unless restrained by the order” of the chancery court.

It is clear that the submission and award do not invest Robert D. James with the right to cut and haul steamboat-wood, from the lands which belonged to the complainant as her separate estate; because she did not assent to them, and her trustee, being a “ trustee to manage” her lands for her sole use and benefit, has no power to convey to another, by means of a submission and award, the right for a series of years to enter upon her land and cut down the timber thereon and carry it away. Such a right would be an interest in the lands, which such a trustee cannot create by means of a submission and award, not assented to by the cestui que trust. — Riddle v. Brown, 20 Ala. 412.

But, although the submission and award be inoperative to create such right or interest in Robert D. James, yet it might be made available as a license, in a suit at law brought against him by the trustee, for entering upon the lands and cutting down and carrying away the timber. Riddle v. Brown, supra, and authorities therein cited: 2 Greenlf. on Ev. § 627 and notes; Hill on Trustees, 503.

Again: If the trustee, who is also husband, could recover at law for the trespasses, the cestui que trust, who is also the wife, may not be willing to give to him the damages he might recover. By allowing him to sue and recover those damages, (which are but the continuing results of his known breach of trust, and the wrongful conduct of the respondents,) she may incur the hazard of losing them, under the rule recognized in Roper v. Roper, 29 Ala. 247, that if the wife lives with the husband, and he receives the income and profits of her separate estate, it will bo presumed, in the absence of an express dissent on her part, to have been with her consent, and will be regarded as a gift to him.

Such views render it impossible to deny relief upon the ground, that the complainant has a plain and adequate remedy at law. She has not such a remedy. — See Davison v. Atkinson, 5 T. R. 432, and authorities supra. In this aspect, her case comes within the influence of the rule and reasoning .which upheld the bill of the wife in Love v. Graham, 25 Ala. 187; Crabb v. Thomas, 25 Ala. 212; and Gerald v. McKenzie, 27 Ala. 166.

The decree of the chancellor is erroneous, and is reversed; and a decree must be here rendered, reinstating the injunction, and remanding the cause; leaving it open in all other respects to be proceeded in when remanded, according to the 'law as settled in this opinion. The appellees must pay the costs of this appeal.