English v. Little , 164 Ga. 805 ( 1927 )

Atkinson, J.

1. The superior courts of this State, on the trial of any civil case, shalj give effect to all the rights of the parties, legal or equitable, or both, and apply on such trial remedies or relief, legal or equitable, or both, in favor of either party, such as the nature of the ease may allow or require. Civil Code (1910), § 5406.

2. In suits in the superior court, founded on a legal or equitable cause of action, for a legal or equitable remedy or both, the petition shall be addressed to the court and shall set forth the cause of action, legal or equitable or both, and the claim for legal or equitable relief or remedy or both, plainly, fully, and distinctly. Civil Code (1910) § 5514.

(a) Rescission and cancellation are proper subjects of equitable cognizance, under general principles relating to equity jurisdiction.

(5) Since passage of'the statute as embodied in § 5406, supra, an action for land may be included in a petition for equitable relief. In this connection see Hunter v. Bowen, 137 Ga. 258 (73 S. E. 380), in which it was said: “The petition was in the nature of an equitable action of ejectment. The plaintiff prayed for a decree declaring the title to be in him, and to enjoin the defendant from interfering with the premises. The defendant was alleged to be in possession, and the plaintiff sought to have him deliver up possession to the receiver, who was to turn over the land to him in the event that he prevailed. A suit of this character is substantially the equivalent of an action of ejectment.”

3. A tenant can not dispute his landlord’s title, nor attorn to another claimant while in possession. Civil Code (1910), § 3698.

4. The petition was not subject to general demurrer upon any ground stated.

(a) In substance the petition complains of continuing breaches of the contract in selling- oil and gas other than that designated by the petitioner, for which injunction is prayed. The mere misnaming of the breaches of contract, by calling them repeated trespasses, will not render the petition demurrable.

(6) The allegations that said “acts of the defendants constitute repeated trespasses” were subject to special demurrer; and as there will be a reversal of the judgment sustaining the general demurrer, direction is given that this ground of special demurrer be sustained, and that these allegations be stricken from the petition.

5. Injunction is not generally a remedy to evict a defendant from possession of land and put the plaintiff in possession. Glover v. Newsome, 134 Ga. 375 (67 S. E. 935) ; Brown v. Toole, 150 Ga. 196 (103 S. E. 226); Burns v. Hale, 162 Ga. 336 (133 S. E. 857) ; Trudie Turpentine Co. v. Pearson, 159 Ga. 387 (125 S. E. 862). This rule does not apply where the defendant is a mere employee of the plaintiff, and not a technical lessee. MacKenzie v. Minis, 132 Ga. 323 (63 S. E. 900, 23 L. R. A. (N. S.) 1003, 16 Ann. Cas. 723); Marshall v. Matthews, 149 Ga. 370 (100 S. E. 103). Injunction is an appropriate remedy in a proper case to prevent acts in violation of contract, producing irreparable injury to the plaintiff, or to prevent a tenant from wilfully injuring a rented building.

6. The petition does not disclose on its face any forfeiture by the plaintiff of his right to the property.

7. As the judgment dismissing the petition on demurrer will be reversed, it becomes unnecessary to make any rulings upon the assignments of error relating to the order appointing the judge pro hac vice, and his jurisdiction to hear the demurrer while the case was pending in the Supreme Court on exception to a judgment granting a temporary injunction, or relating to the question as to the conclusiveness of the judgment granting the temporary injunction.

Actions, 1 C. J. p. 1060, n. 9; p. 1088, n. 53; p. 1090, n. 87.

Appeal and Errol-, 4 C. J. p. 649, n. 36; p. 650, n. 37.

Cancellation of Instruments, 9.C. J. p. 1159, n. 6.

Courts, 15 C. J. p. 986, n. 54'.

Ejectment, 19 C. J. p. 1030, n. 15; p. 1106, n. 62 New.

Equity, 21 C. J. p. 447, n. 42, 43; p. 448, n. 44.

Injunctions, 32 C. J. p. 124, n. 83; p. 131, n. 51; p. 132, n. 53 New; p. 136, n. 85; p. 187, n. 57.

Landlord and Tenant, 35 C. J. p. 1247, n. 99; p. 1248, n. 2; p. 1249, n. 46; 36 C. J. p. 95, n. 43; p. 96, n. 47.

Pleading, 31 Cyc. p. 92, n. 97; p. Ill, n. 3; p. 280, n. 97; p. 637, n. 7.

No. 5658. September 19, 1927. Rehearing denied September 29, 1927.

Judgment reversed,.

All the Justices concur.