Opinion
6 Div. 930.
June 17, 1920. Rehearing Denied October 21, 1920.
Appeal from Circuit Court, Walker County; J. J. Curtis, Judge.
W. F. Finch, L. B. Gray, and Lacy, Lacy Shepherd, all of Jasper, and J. J. Mayfield, of Montgomery, for appellants.
Where the title of complainant is shown to be clear, equity will enjoin continuing trespasses, such as are shown in this case. 96 Ala. 227, 10 So. 848; 144 Ala. 444, 39 So. 519; 147 Ala. 546, 41 So. 145. The remedy at law in such cases is inadequate, and an injunction should be granted, although the respondent is solvent and the title doubtful. 113 U.S. 527, 5 Sup. Ct. 560, 28 L.Ed. 1113; 14 R. C. L. 451; 95 Ala. 235, 10 So. 652; 121 Ala. 567, 25 So. 754; 181 Ala. 276, 61 So. 897; 147 Ala. 280, 41 So. 831. The right of redemption is not an interest in land, but a mere personal privilege. 176 Ala. 134, 57 So. 705.
A. F. Fite and Leith Powell, all of Jasper, for appellees.
Appellants could not have been purchasers of the land without notice of the rights of Aaron, in the face of the evidence in this case. 162 Ala. 158, 50 So. 313. Moreover, they required nothing from Bankhead but a quitclaim deed, and could not be protected against Aaron's rights. 100 Ala. 326, 13 So. 948, 46 Am. St. Rep. 56; 176 Ala. 456, 58 So. 465; 200 Ala. 630, 77 So. 4. So far as Aaron is concerned, the appellants in this case never required any title to the merchantable timber on the land, 184 Ala. 137, 63 So. 651; 127 Ala. 279, 28 So. 476. Aaron had such an equitable title as to have the legal title transferred to him. 200 Ala. 627, 77 So. 1. Forfeitures are not favored in equity. 99 Ala. 90, 10 So. 293; 102 Ala. 184, 14 So. 565; 68 So. 149.
We have given studious consideration to the merits of the controversy here presented, as shown by the sworn bill and answer, the exhibits, and the numerous affidavits offered for and against.
The bulk of the record forbids a discursive review of its details, and we shall merely state our conclusions of fact and of law: (1) Complainants, as quitclaimees of J. H. Bankhead, Jr., became the owners of the land in question on December 16, 1918, and, as his privies in estate, succeeded to all of his rights in the lands, in the timber, and in the timber contract between Martin O'Rear and Monroe Aaron; (2) Monroe Aaron violated that provision of his contract which required him to pay amounts due thereunder within 60 days after they became due; (3) Martin O'Rear was thereby armed with the power to declare the entire contract forfeited; (4) he seasonably declared such a forfeiture, and the forfeiture became effective at least as early as November 20, 1918; (5) while the forfeiture was effective, on or about November 27, 1918, Martin O'Rear's right of redemption expired, and his interest in the land, and his rights under the contract, were terminated; (6) thereafter, down to December 16, 1918, said O'Rear was without authority to reinstate the contract or to waive the forfeiture already effected without the consent of Bankhead, nor could he do so after December 16, 1918, without the consent of complainants, who thereafter stood in Bankhead's shoes; (7) neither Bankhead nor complainants consented to such a reinstatement or waiver; (8) the transaction of January 16, 1919, between Martin O'Rear and Monroe Aaron, including Aaron's payment to O'Rear of $1,000 in adjustment of amounts due, or past due, at that time, under the contract, was not a waiver of the forfeiture already declared, in view of the new arrangement which they then agreed upon looking to the purchase of the lands from complainants, and their joint prosecution of the timber business thereon; (9) as a matter of law, when this contract had been effectually forfeited by the seasonable action of O'Rear so that it was completely at an end, the mere acceptance of money by O'Rear for timber cut thereafter, or even for timber that might be cut after such payment, did not reinstate the contract as a whole, but validated only the cutting of the timber paid for; (10) in any case, under the express terms of the contract with Bankhead, which are effective in favor of his grantees, these complainants, Aaron had no right to pay any money for timber cut after November 27, 1918, to Martin O'Rear, and O'Rear had no right to receive it, and hence its payment and reception could not, for that reason, have any legal effect upon the previously forfeited contract.
It results from the several conclusions stated that complainants were entitled, upon the showings made, to a temporary writ of injunction, as prayed, to preserve the subject-matter of the litigation from loss or destruction pending a determination of the merits of the respective claims.
Our conclusions of fact herein are, of course, but provisional, and effective only for the purposes of this appeal.
We may observe here that the trial court fell into the error of holding that, under the terms of the contract, its forfeiture could not be declared except after 60 days' notice to the offending party. That error is due to a misconstruction of section 12 of the contract, which merely required a default of 60 days in payments by Aaron, before O'Rear could declare a forfeiture — and entirely different proposition. No doubt that erroneous conception of the contract decisively influenced the court in the conclusion reached.
So far as the right to injunctive relief in this case is concerned, its invocation against a holdover tenant or contractee, in violation of the terms of the contract under which possession and timber rights were held and claimed, is not dependent upon the theory of irreparable injury to the land. It is enough that a possessory contract has been and is being violated, to the injury of the owner. F. W. Woolworth Co. v. Frank Nelson, Jr. (Nov., 1919) ante, p. 172, 85 So. 449.
The decretal order denying the temporary writ will be reversed, and it is ordered and decreed that the temporary writ be issued, as prayed, upon the execution of a sufficient bond, approved as the law requires.
Reversed and rendered.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.