Kirkland v. Odum , 156 Ga. 131 ( 1923 )

Hines, J.

(After stating the foregoing facts.)

' We can not say that the trial judge abused his discretion in granting an interlocutory injunction, and in preserving the status, until the rights of the parties can be finally settled by a verdict and decree. Counsel for the defendant asserts that it was the evident purpose of the plaintiff to bring his petition under the timber cutters’ act (Civil Code (1910), § 5504); and that, having so laid his action and having failed to show perfect title in himself, he was not entitled to an injunction. We can not say that it was the manifest purpose of the- plaintiff to proceed under that act. He does not allege in so many words that he has perfect title to the timber. He does allege that he leased the timber for turpentine purposes from the owner in fee of the lands upon which it stands; and he attaches to his petition an abstract of the title of his lessor. This chain of title does not show perfect title to the timber in the plaintiff. His petition, in the absence of an allegation of perfect title, and with an abstract of title which fails to shoV such perfect title, can well be construed to be framed under the general principles of equity which govern the injunction of trespasses. If the plaintiff failed to allege and prove a case under the timber cutters’ act, but alleged and established one under the general principles of equity applicable to the grant of injunctive relief against trespasses, the-court properly granted a temporary injunction against the defendant. Equity will enjoin a solvent trespasser from committing repeated and continuous trespasses. Where the claim of title of both parties is from a common source, and where the plaintiff’s lease is the older, and is not successfully attacked for any defect or irregularity, and where the defendant, though solvent, threatens to continue to go on the land from day to day for the purpose of hacking, scraping, and removing the crude gum from the trees, equity will restrain the defendant from such recurring trespasses. Moore v. Daugherty, 146 Ga. 176 (91 S. E. 14).

But the defendant attacked the older lease of the plaintiff. Were all or any of these attacks well'founded ? These attacks are, that the plaintiff defaulted in the payment of the price which he was to pay per thousand boxes for the privilege of turpentining the lessor’s timber; that the contract was unilateral; that the contract was an executory one without consideration; that the lease created a perpetuity; and that the lessor had rescinded the contract of lease for non-performance by the plaintiff of his covenants thereunder. The lease recites a consideration, and the fact that the consideration named was not actually paid does not render the lease void, because the lessor could sue for and recover it. Nathans v. Arkwright, 66 Ga. 179; Southern Bell Tel. Co. v. Harris, 117 Ga. 1001 (44 S. E. 885); Whidby v. Willis, 151 Ga. 43 (105 S. E. 470). This also disposes of the attack that the lease is an executory contract without consideration. The contract is not unilateral. Both parties are bound to perform their covenants thereunder. The lease does not create a perpetuity; for if the plaintiff is not required to turpentine this timber within the period of five years, he certainly must do so within a reasonable time. McRae v. Stillwell, 111 Ga. 65 (36 S. E. 604, 55 L. R. A. 513), Goette v. Lane, 111 Ga. 400 (36 S. E. 758); Shippen Lumber Co. v. Gates, 136 Ga. 37 (70 S. E. 672). We can not say that the trial judge was required to find, under the evidence, that the lessor was entitled to rescind the contract on account of the failure of the lessee to pay the purchase-price for the right to work this timber for turpentine purposes. The payment of the purchase-money was not made a condition precedent to the exercise of this right. Clyatt v. Barbour, 111 Ga. 130 (36 S. E. 468). There is no provision for a termination of the right in case payment should not be made. Florida Yellow Pine Co. v. Flint River Naval Stores Co., 140 Ga. 323 (78 S. E. 901); Georgia Land Owners Co. v. Tanner, 142 Ga. 693 (83 S. E. 516). Certainly the fact that the lessor had a suit pending against the plaintiff for cancellation of this lease, on the ground of his failure to pay the consideration thereof, does not constitute a rescission of the lease and a forfeiture of the plaintiff’s rights thereunder prior to the determination of that suit.

We can not say that the trial judge abused his discretion in granting a temporary injunction.

Judgment affirmed.

All the Justices concur.