Opinion
7 Div. 315.
June 22, 1922.
Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.
Isbell Scott, J. V. Curtis, and C. A. Wolfes, all of Ft. Payne, for appellants.
The sworn answer fully denied all the averments of the bill upon which could be predicated any right to injunctive relief relating to disposition of timber already severed and growing crops, and the injunction as to these matters should have been dissolved. 158 Ala. 231, 48 So. 489. Until foreclosure, entry for that purpose, or appointment of a receiver, growing crops belong to the mortgagor, with full power unless the crops are expressly brought within the scope of the mortgage. 27 Cyc. 1247; 9 Ala. App. 585, 63 So. 779. An injunction will not ordinarily lie to restrain removal of timber already cut; ceasing to be a part of the realty, and being converted into personal property, trover will lie for it. 1 Jones on Mortg. (4th Ed.) 591.
H. T. Bailey, of Valley Head, and Hood Murphree, of Gadsden, for appellees.
The motion to dissolve injunction was properly overruled. 180 Ala. 338, 60 So. 919; 89 Ala. 493, 7 So. 810; 167 Ala. 510, 52 So. 735; 199 Ala. 101, 74 So. 239; 206 Ala. 226, 89 So. 600.
The bill in this case was filed by appellees against appellants, seeking a foreclosure of a mortgage upon certain real estate therein described. The demurrer was interposed to the bill as a whole, and it is insisted that the bill is without equity. This position is not well taken. Certainly the bill had equity for the foreclosure of the mortgage, and it was proper likewise to seek an injunction against the mortgagors for permitting waste, which would impair the security and render it insufficient. Coker v. Whitlock, 54 Ala. 180; 4 Mayfield Dig. 233.
In the fourth paragraph of the bill, reference is made to the crops maturing upon the land embraced within the mortgage, and injunction sought against the disposition thereof. The argument is advanced that, as the mortgage did not embrace the crops, the bill was without equity in so far as it sought injunctive relief against their disposition. There was no demurrer addressed to this feature of the bill, but, as previously stated, the demurrer went to the entire bill, and the question thus argued is therefore not presented here for review. If objectionable, this feature did not affect the equity of the bill as a whole, and, as said by this court in Houston v. Williamson, 81 Ala. 482, 1 So. 193: "The demurrer going to the entire bill, and being good as to a part only, was properly overruled."
See, also, Sims' Chancery Prac. §§ 429-431.
It may be, as to this feature, if the mortgagee felt himself in danger of losing his mortgage debt, and therefore a necessity existed for the preservation of the crops, that a more appropriate remedy would have been the appointment of a receiver, as it is generally recognized that the function of an injunction is not to take the property out of the possession of one party and put it in another. Fair v. Cummings, 197 Ala. 131, 72 So. 389. The trial court, however, in the instant case modified the injunction as to the crops to permit their control and disposition by respondents, and, as the matter is now presented to this court, there is no necessity for decision upon that question. There was no error in overruling the demurrer to the bill.
The motion to dissolve the injunction was rested solely upon the grounds set forth in the demurrer to the bill, and which we have just discussed. Brief for appellant indicates that counsel were of the opinion that the motion was also rested upon the sworn answer of respondents. The grounds for the motion are set out in the report of the case, which will disclose that counsel are in error in that regard, and answer was in fact filed subsequent thereto. For the reasons assigned in consideration of the demurrer, it follows that the motion to dissolve was likewise properly overruled.
Finding no error, the decree appealed from will be affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.