Montgomery v. Hollingsworth , 127 Miss. 346 ( 1921 )

Sykes, J.,

delivered the opinion of the court.

The appellant, Sam Montgomery, as complainant in the chancery court in his bill alleges that he is the owner of certain farming lands in Bolivar county, that during the latter part of the year 1920 he and the defendant discussed a partnership arrangement between themselves for the farming of these lands for the ensuing five years, but that they never agreed upon the terms of the partnership, and that, before the defendant had moved himself and family or any of his goods upon the lands of the complainant, he (complainant) notified the defendant not to move upon the property, and that they could not reach an agreement.

The bill further alleges that the defendant has moved his household goods on the property and is seeking to take charge of the property over the protest of complainant. Among other things, he prays for the issuance of an injunction against the defendant, enjoining him from moving his property to the plantation of complainant, and commanding him to remove himself and his property of all kinds from the said plantation, and that he be enjoined from interfering in any manner with the property or with the business of the complainant; that on final hearing the injunction be made perpetual.

Without notice to the defendant a temporary mandatory injunction in accordance with the prayer of the bill was issued by the chancellor. The defendant in his answer alleges that he and. the complainant during the latter part of the year 1920 entered into an agreement whereby they became partners to farm the plantation of the complainant for a period of five years; that it was agreed between them that this agreement be reduced to writing, and that all the terms of the writing were agreed to between them, but that it was never signed by either party, because the complainant wished to typewrite the agreement; that the agreement had originally been typewritten by complainant, but that certain changes therein had been inserted by the defendant, and for this reason complainant wished to retypewrite the entire agreement, which, however, was never done; that under this agreement the partnership could be terminated at the end of any farming year upon the request of either party. The answer further alleges that in pursuance of this agreement and with the knowledge and consent of the complainant the defendant moved upon the lands during the month of December and began to improve them; that he contracted with labor in the partnership name to work the lands for the farming year of 1921; that he hauled the material and built a house upon the lands, and had actually hauled and placed into the house a part of his household furniture and effects, and was about to move his family at the time suit was brought. It is also alleged in the answer that the defendant had actually been living for some time in a little house upon the land while he was erecting the house for himself and family. The answer is made a cross-bill, and asks that the complainant be required to execute the agreement of partnership entered into between them. A motion to dissolve the temporary mandatory injunction was made and was heard upon bill, answer, and oral testimony, and was dissolved by the chancellor, from which order this appeal is here prosecuted to settle the principles of the case.

Both the complainant and the defendant testified upon this hearing, and their testimony is conflicting. The testimony of the complainant is to the effect that they never came to a definite agreement as to the articles of partnership. He admits, however, that the defendant had ac-. tually taken charge of the plantation, made a number of contracts with the hands for the ensuing farming year, and made some improvements on the place. That these contracts with tenants were made in the name of Montgomery and Hollingsworth. That he paid each week to these tenants amounts due them as shown by the statement of Hollingsworth.

The defendant testified that they had thoroughly agreed upon the terms of the partnership, and that upon the suggestion of the complainant he agreed that the same be put in writing. This agreement is shown in the record. It is, however, unnecessary to set it out in full. It is sufficient to say that under it complainant agreed to rent this plantation to the partnership composed of himself and defendant for the term of five years. The defendant is to put up his time and ivork and that of his family against the renting of the land, and to use certain farming stock and implements upon the place. The defendant is required to keep accounts of expenses, etc., and render them weekly to the complainant, and these expenses are to be paid by complainant at that time.- It is provided how the partnership may be dissolved, namely, at the end of a year’s business. It provides how the farm produce shall be sold, and that the partnership will have an annual settlement on December 1st of each year.

The defendant testified that under this contract he was in the actual management of the plantation, carrying out its terms, when for no apparent reason he was informed by the complainant that he (complainant) was not satisfied, and that the partnership was at an end; that he declined to agree to this termination of it, whereupon he was served with the mandatory injunction.

It is the contention of the appellant that the agreement is void because within the statute of frauds, namely, that it is to exist for a period of five years; that since it is a void agreement the defendant has no rights under this agreement — citing Mallett v. Lewis, 61 Miss. 105. Under this decision we think the contract comes within the statute of frauds.

In this case, however, the defendant took possession of the property under the agreement, made contracts with the hands for the farming year, and was improving the property for the purpose of making a'crop during the year 1921. The agreement shows that there were to be annual settlements, namely, on December 1st. Though the contract be unenforceable under the statute of frauds, since Hollings-worth actually entered into possession of the leased premises, in pursuance of this contract a periodical tenancy was thereby created good from year to year. Scruggs v. McGehee, 110 Miss. 10, 69 So. 1003; Hutchinson v. Platt, 119 Miss. 606, 81 So. 281; note, 17 Ann. St. Rep. 752.

As the defendant was in possession of the land under bona-fide claim of right, it was error for the chancellor in the first instance to grant the mandatory injunction without notice to the defendant. Miles v. Fink, 119 Miss. 147, 80 So. 533. In the case of Gulf Coast Co. v. Bowers, 80 Miss. 570, 32 So. 113, the rule is there announced that — A “mandatory injunction . . . should not issue unless the right to it is so satisfactorily shown that there can be no reasonable doubt of its propriety. The case-made should be such that there can be no probability that the defendant can make a valid objection to it. Unless the grounds for a preliminary mandatory injunction be inexpungeable, it is the safer rule to hear both sides before directing its issuance.”

This language is quoted with approval in the case of Pearman v. Wiggins, 103 Miss. 4, 60 So. 1.

For both of these reasons the chancellor was correct in dissolving the injunction.

Affirmed and remanded.