Bowling v. Crook , 104 Ala. 130 ( 1893 )

COLEMAN, J.

The main purpose of the bill is to obtain an injunction, restraining the appellant Bowling from trespassing upon the lands of complainant. On the 1st day of January, 1892, James Crook, husband of complainant, by written agreement signed by himself and lessee, leased to respondent, Bowling, for a term of five years, certain lands. The lease contract contains mutual covenants, and stipulates among other things for the payment of an annual rent, and provides that, “for a failure to perform and carry out fully the obligations assumed by said Bowling in this contract of lease, the said Crook shall have the power and authority to re-enter on said leased premises,' and enjoy the .same as if no lease had been made.” On the 24th day of February, 1893, the written lease was modified, in writing, so far as James Crook had covenanted to make certain advancements in money to the lessee, Bowling, for that year, but in all other respects, the lease contract remained the same.

The bill was filed January 10th, 1894, and charges that the lessee, Bowling, “has failed to carry out fully the obligation assumed by him as shown in said lease contract.” The covenants of the lessee are successively stated in the bill, each followed by an averment of noncompliance by the lessee, and in some instances facts are stated to show in what respect the covenant of the lessee was violated. The bill avers a re-entry of the leased land by James Crook as provided for in the lease, his possession under the re-entry, and notice to Bowling not to trespass on the lands, the refusal of Bowling to keep off the premises, and his avowed purpose to cultivate the lands, in disregard of complainant's right under the declared forfeiture and re-entry. A temporary injunction issued as prayed for in the bill. The bill avers that relief by injunction is necessary to prevent irreparable injury, and multiplicity of suits. The respondent filed a sworn answer, and submitted a motion to dismiss the bill for want of equity and also a motion upon the answer to dissolve the injunction. These motions were severally overruled by the chancellor, and respondent appealed. We should have stated that the bill also prays for a cancellation of the lease made by her husband, James Oroolc, as a cloud upon her title.

In the brief of counsel for appellee it is argued, that James Crook was not authorized in writing by complainant, to mcike a lease of the lands for a term of five years, and therefore the contract was void under the statute of frauds. Whether the contract in the present case, even though entered into by James Crook without written authority, can be taken from under the influence of the rule declared in the case of Shakespeare v. Alba, 76. Ala. 351, and others, in which it was held that the statute of frauds had no application to a lease contract for a term of years, which provided for the payment of rent in instalments, and the lessee was placed in possession of the rented premises, and the landlord accepted payment of the rents, we deem it unnecessary to decide. This question does not arise under the pleadings in this case. The bill expressly avers that the contract was made by ‘ ‘her husband, James Crook, acting for her and in her behalf,” and it further avers that “James Crook, her husband, has complied in full with every duty and obligation assumed by him in said contract.” The rights of complainant are based strictly upon a breach of the covenants by the lessee, and the right to re-enter and re-entry by her husband for broken conditions as provided in the lease. There is not a hint in the bill that James Crook was not legally authorized to make the contract, nor an intimation that it is or was ever repudiated by her.

The law is settled in this State that courts of equity have jurisdiction to enjoin trespasses upon land, but this jurisdiction is not exercised as a matter of coursó when a trespass has been committed by one person upon the land of another or such a trespass is apprehended. If it appears that the rights involved are wholly legal, it must be shown that the remedy at law is inadequate. Equity will interfere, when the trespass is recurrent, continuous, and to avoid a multiplicity of suits, and the title to the land is admitted, or is clearly in the plaintiff. — 1 Pom. Eq., §§ 252, 255 ; East & West R. R. Co. v. East Term. Va. & Ga. R. R. Co., 75 Ala. 275; Nininger v. Norwood, 72 Ala. 277 ; Boulo v. New Orleans, M. & G. R. R. Co., 55 Ala. 480; Sullivan v. Rabb, 86 Ala. 433; Ashurst v. McKenzie, 92 Ala. 484.

Equity will interfere to enjoin repeated actions in ejectment, after there has been one or more trials at law; but the remedy by injunction will not be granted in the ■first instance, in the absence of some equitable grounds, where the title is disputed., and depends upon the settlement of facts which are controverted. The remedy by injunction can not be substituted for ejectment or unlawful detainer. The bill shows a case of leasing for five years, a breach of covenant by the lessee during the term of the lease which entitled the lessor to re-enter, a re-entry by him, and the refusal of the lessee to yield possession, and a claim and purpose on the part of the lessee to retain possession of the land under the lease. This is the continued trespass complained of, and the basis for the multiplicity of suits. It does not appear why an action of ejectment, or of unlawful detainer, will not determine which of the parties have the legal right to the possession, nor why such an action will not put an end to litigation. Mere averments that irreparable damage will result, or that a bill in equity is necessai*y to prevent a multiplicity of suits will not avail the pleader unless supported by proper charges of facts.— Kellar v. Bullington, 101 Ala. 267.

There is another objection to. the bill. It is averred that the breaches of covenant by the lessee, upon which the forfeiture is claimed, occurred in the years 1892 and 1893. So far as the breaches complained of occurred in the year 1892, there was an express waiver, by the subsequent reception of the rent for that year, and the modification of the lease in February, 1893, and its re-affirmance in all other respects. As to the breaches of covenant which it is averred occurred in the year 1893, no particular time is mentioned. The lease provides that the land shall be cultivated "after the most approved methods of agriculture.” What constitute "cultivation after the most approved methods” presents questions of fact., about which we presume there will be much contrariety of opinion. The lease provides that the lessee "shall fill three large silos, closely packed, with good, sound heavy corn in the fall of each year,” and "in the fall or early winter of each year to gather and store in said crib one thousand bushels of good, sound dry corn.” In Brooks v. Rogers, 99 Ala. 433, it was decided, “that acceptance by a landlord of rent accruing after breach of a condition containd in the lease, with full knowledge of the breach and all the circumstances, is a waiver of the right to declare a forfeiture of the lease, and re-enter on the premises.” The same rule was declared in Dahm v. Barlow, 93 Ala. 120. A lessor can not affirm a contract of lease so as to receive the benefits of its covenants and afterwards declare a forfeiture for breach of conditions, and hold the lessee liable as a trespasser during the same period for which he collected rents; nor could he receive corn in payment of the rent under the lease, without objection, with knowledge of its condition, and after getting the corn declare a forfeiture because of the character of the corn.

The bill in its present shape is without equity. It may be amended, so -.as to give it equity, and the complainant may be able to show that the method .of cultivation by the lessor, if continued, will cause irreparable damage to complainant’s land, or that such consequences will result from his neglect to comply with other covenants of the lease. There is no provision in the lease which compels the lessor to cultivate the “mountain field” in corn, or to distribute the manure over all the lands leased. The breaches complained of are set out in the 5th paragraph of complainant’s bill. The answer contains a sufficient denial of each and every averment of the breach of covenants therein made, and then avers, affirmatively, .facts, not in avoidance, but which, if true, are a denial of the truth of the averments of the bill. It denies that complainant is in possession of the leased lands, or has been in possession since the occupancy by the lessee under the lease.

Under the pleadings the injunction should have been dissolved. An order will be here made to that effect.

Reversed, rendered in part, and remanded.

Haralson, J., not sitting.