Reeve v. Hicks , 197 Ga. 181 ( 1944 )

1. An option to purchase land does not, before exercise of the option, vest in the holder of the option any interest, legal or equitable, in the land itself.

2. The petitioner occupied described lands under a lease contract with the life-tenant and an option contract executed to him by the remaindermen. Thereafter the life-tenant conveyed to one, who in turn conveyed to another, a corporation, the right to cut certain described timber on the lands. The corporation erected a sawmill on the land and began cutting the timber. The petitioner brought an action, seeking damages and an injunction against the life-tenant, his grantee, and the grantee corporation, solely under an asserted title as the holder of the option contract. Held, the petitioner, not having been shown by the evidence to have acquired title to the lands by the exercise of the option contract or otherwise, was not entitled to an injunction against the named defendants to restrain them from cutting and removing timber from the lands; accordingly, the order of the court granting an injunction on condition that bond be given by the petitioner by a certain date was not harmful error against him.

No. 14736. JANUARY 5, 1944. T. E. Reeve filed an equitable petition against F. L. Hicks, P. E. Haynes, and Georgia Morain Corporation to enjoin them from cutting and removing timber from lands in his possession, and to recover damages for certain timber cut thereon. The evidence showed that on January 16, 1900, F. L. Hicks, then owning the lands involved, conveyed the same to his two children, W. Henry Hicks and Ernest F. Hicks, reserving a life-estate in himself. On June 22, 1940, F. L. Hicks leased the lands to the petitioner, effective January 1, 1941, to "run during the life of the lessor herein, provided that lessee shall have the right to terminate same at end of five years by giving lessor written notice of such intention 60 days before said expiration date." It was further provided that the lessee was "to pay to the lessor thirty-five dollars each month at end of each month, or a total of $420 per year. Lessee is also to pay all insurance premiums on present insurance policies, also to pay all taxes on said property, and to keep all buildings and improvements in repair. Which payment of rent, insurance premiums, and taxes shall be in full payment of all rents on said property." Simultaneously with said lease, one grantee and the heirs at law of the deceased other grantee in the deed executed by F. L. Hicks on January 16, 1900, entered into a written contract with the petitioner whereby they ratified the lease from F. L. Hicks to the petitioner, and agreed that "in event of death of F. L. Hicks before said date [January 1, 1941], said lease contract shall be of force for the full term of five years from January 1, 1941, at which time it shall terminate, provided that F. L. Hicks shall have passed away before said date. It is also provided herein that said party of the second part has the option to purchase said property at any time while this contract is in force, after the death of F. L. Hicks, and that if and when he exercises said option and pays for the same, he shall receive a fee-simple warranty deed and full possession." Then follows a statement of the price to be paid for the premises, and a provision that "if F. L. Hicks shall live beyond the five-year period, and second party continues as lessee, then at the death of F. L. Hicks said option to purchase shall continue only the space of 60 days beyond the date of said death." Petitioner entered into possession of the lands on January 1, 1941, and made valuable improvements thereon, expecting to exercise his option within the period agreed upon. Thereafter F. L. Hicks conveyed to P. E. Haynes, who in turn conveyed to Georgia Morain Corporation, the right to cut, within a period of fifteen months from July 2, 1943, all merchantable pine saw timber over six inches in diameter at the stump on the lands involved, and the corporation entered upon and erected a sawmill on the lands, cut some timber therefrom, and will continue to do so unless restrained by law. The petitioner prayed that the contracts be brought into court and be cancelled as clouds upon his alleged title.

There was conflicting evidence as to whether or not the cutting of six-inch timber would constitute waste or be good husbandry, one of the issues made in the case; petitioner contending that F. L. Hicks had only a life-estate in the lands after his conveyance to his children on January 16, 1900, and could not legally grant to anyone the right to cut and remove the timber therefrom; and the defendants contending that F. L. Hicks had the right to cut timber, as he had been doing before leasing the lands to petitioner and without objection from the grantees in the deed of January 16, 1900, in which a life-estate was reserved in F. L. Hicks. The petition and evidence for the petitioner contain many references to his occupation of the premises under a lease from F. L. Hicks; the petition as amended being introduced in evidence and also alleging: "This act of the defendant [the cutting and removing timber from the leased lands by Georgia Morain Corporation] will cause irreparable injury and damage to the property for the reason that the timber is growing and increasing in value; when the timber is cut it will cause the land to wash and erode, and in cutting and felling the trees the young and growing pines less than six inches in dimeter will be broken, damaged and largely destroyed. This constitutes a trespass against petitioner, the holder of the option, and will cause irreparable damage to him, and he is entitled to come into court and have the defendant Georgia Morain Corporation enjoined from further interfering with his possession and from cutting and removing any of the timber, for all of which he prays. But for the fact that he was to have the option to purchase the lands hereinbefore described, he would not have leased said lands. He declined to lease the same or any part thereof until the option was executed to him, and . . by reason of his improvement of said lands in expending the money heretofore mentioned he has an interest in the lands, and there was such consideration for the option and such part performance that he is entitled to maintain this action and to have the relief sought. . . Each and all of said acts of the defendants were committed in knowledge of the rights of petitioner and in absolute violation of his rights in the premises and constitute a trespass against his rights in said property, and the acts have made it necessary for petitioner to employ counsel to bring this suit in order to protect his rights in the premises, and because they were knowingly and wilfully committed defendants are liable to petitioner, and he prays judgment against each of the defendants for the sum of $200. There is growing on the 60 acres of timber lands pine timber of some 200,000 to 300,000 feet, and good husbandry and management of timber would be not to cut and remove any growing timber under twelve inches in diameter at the ground, and to cut and remove timber as small as six inches in diameter constitutes the worst sort of waste, resulting in irreparable damages to the premises and petitioner."

The petitioner had not exercised his right under the option relied upon at the time of the filing of the present action.

The court entered an order as follows: "Upon consideration and after hearing evidence the injunction heretofore granted is continued of force upon the plaintiff giving bond in the sum of $750, to be approved by the clerk of Gordon superior court, conditioned to indemnify F. L. Hicks and Georgia Morain Corporation and P. E. Haynes against loss by reason of being enjoined. Upon failure of giving said bond on or before September 20th, let the injunction be dissolved." The petitioner excepted on the ground that the requirement that the injunction be dissolved unless bond be given as stated was error for the reason that he was entitled to an injunction unconditionally. The present action is clearly one in which the petitioner seeks relief under an asserted title by reason of the option contract, and not under the lease contract which is set out as an exhibit attached to the petition. He asks damages for timber already cut, and seeks to have set aside as clouds upon his asserted title the conveyances under which the defendant Georgia Morain Corporation claims the right to cut and remove the timber; to have the defendants enjoined from such acts because they will cause irreparable injury and damage to the timber which is growing and increasing in value, and the cutting thereof "will cause the land to wash and erode;" the growing trees less than six inches in diameter will be broken, damaged, and largely destroyed; all of which he contends constitutes a trespass against him as the holder of the option to purchase.

"An option to purchase land does not, before acceptance, vest in the holder of the option any interest, legal or equitable, in the land itself. 39 Cyc. 1237, G (1); 27 R. C. L. 334, 335. Nor, according to the weight of authority, does the interest of the optionee in the land, by fiction, date back from the granting of the option, in case the option is accepted and a contract of sale made. 23 A.L.R. 1217; Caldwell v. Frazier, 65 Kan. 24 (68 P. 1076)." Varn Turpentine Cattle Co. v. Allen, 38 Ga. App. 408 (3) (144 S.E. 47). See also Franklin v. McCormick,182 Ga. 757 (187 S.E. 6); Neely v. Sheppard, 185 Ga. 771,775 (196 S.E. 452); Mattox v. West, 194 Ga. 310, 314 (21 S.E.2d 428); 8 Thompson on Real Property, § 4570. Under the above-cited authorities the petitioner, not having exercised the right to call for the lands under the option contract relied upon, had no interest, legal or equitable, in the land or timber here involved, and none but the owner could maintain an action for damage to such property. "It would seem to be axiomatic that if a plaintiff be not entitled to recover damages for a trespass alleged in his petition to have been already committed, he can not be permitted to maintain an equitable action to enjoin a continuance of the trespass. Flannery v. Hightower, 97 Ga. 602."Downing v. Anderson, 126 Ga. 373, 374 (55 S.E. 184). Since the petitioner may not maintain an action for trespass to the land or timber, it necessarily follows that he is not entitled to an injunction against the named defendants, and no relief is sought against the optionors, who are not alleged to have breached the contract so as to afford a right of action against them. Hence the order of the court granting an injunction only upon the condition that the petitioner execute a bond by a named date was not harmful error against him.

In a proper case seeking to restrain irreparable damage to the proper exercise of his lease, the tenant would be entitled to injunction. In Anthony Shoals Power Co. v. Fortson, 138 Ga. 460 (4) (75 S.E. 606), it was held: "Injunction is an available remedy to restrain a landlord from interfering with the possession of his tenant pending the tenancy, where the damages are of such a nature as to be incapable of accurate computation." Certainly a tenant would have no less a right against a mere trespasser, as the defendant Georgia Morain Corporation is shown to be, because the only claim of title asserted by it is from F. L. Hicks, the life-tenant in the present case, who could not legally convey to it the right to cut timber from lands deeded to his children, subject only to a life-estate in himself. The petitioner does not, however, bring himself within the rule just adverted to, because it is not shown that he sustained any irreparable damage merely by reason of his possession, such as interference with his farming operations, the improvements he has made on the premises, or any of his activities as a tenant; his supposed right to an injunction being predicated on alleged irreparable damage to the timber and the land upon which it is growing, as to which the option contract gives him no interest, legal or equitable, but only a privilege to buy the property at the price agreed upon, within a certain time, and on agreed terms and conditions. See Illges v. Dexter, 77 Ga. 36, 38;Mattox v. West, supra. "The owner does not sell his land; he does not then agree to sell it; but he does then sell something, viz., the right or privilege to buy at the election, or option, of the other party. The second party gets in praesenti, not lands, or an agreement that he shall have lands, but he does get something of value; that is, the right to call for and receive land if he elects." 8 Thompson on Real Property, 506, § 4569. If the petitioner desires title to the land and timber, the way is open to him by exercising his option.

Judgment affirmed. All the Justices concur, except Jenkins,P. J., absent on account of illness.