Summary
In Walker v. Cox, 209 Ala. 627, 96 So. 707, 709, the Supreme Court of Alabama said: "In the Little Case (referring to Roberson v. Little, supra), it will be noted that the owner of the soil deliberately and persistently prevented the cutting of the timber by the purchaser until the expiration of the stipulated term, and for the purpose of thus depriving the purchaser of the benefits of his bargain."
Summary of this case from Flowers v. Vinton Lbr. Co.Opinion
1 Div. 270.
May 10, 1923. Rehearing Denied June 14, 1923.
Appeal from Circuit Court, Clarke County; Ben D. Turner, Judge.
Thos. F. Seale, of Livingston, for appellant.
Where the vendee's failure to remove timber during the time stipulated in the deed has been due to interference by the owner of the soil, his right to a reasonable time thereafter in which to remove will be declared and enforced by appropriate decree in equity. Roberson v. Little, 200 Ala. 582, 76 So. 940. A temporary injunction should not be dissolved upon the sworn denials of the answer, if its dissolution would entail irreparable loss upon the complainant; and if the defendants by the dissolution of the injunction were allowed to cut timber, so that they would not be able to restore it to the appellant, then the injunction should be continued until the coming in of the full proof, that equity may be done between the parties. Profile Cotton Mills Co. v. Calhoun Water Co., 189 Ala. 181, 66 So. 50; Lauderdale v. McAllister, 193 Ala. 175, 68 So. 984; Code 1907, § 4535; Franklin v. Long, 191 Ala. 310, 68 So. 149; Rice v. Davidson, 206 Ala. 226, 89 So. 600; Saxon v. Parson, 206 Ala. 491, 90 So. 904; Thompson v. Johnson, 201 Ala. 315, 78 So. 91; Brown v. Bell, 206 Ala. 182, 89 So. 659; Toney et al. v. Burgess, 208 Ala. 55, 93 So. 850.
T. J. Bedsole and Q. W. Tucker, both of Grove Hill, for appellees.
In order to justify relief on the ground of interference, it must appear that complainant, either by actual force or by action legally equivalent to such force, was actually prevented from exercising his right. Peshtigo Lbr. Co. v. Ellis, 122 Wis. 433, 100 N.W. 834; Sanders v. Clarke, 22 Iowa, 275. Though a bill show cause for injunctive relief, if the sworn answer denies all averments thereof upon which the right can be predicated, a temporary injunction is properly dissolved. Consumers' C. F. Co. v. Yarbrough, 194 Ala. 482, 69 So. 897; E. W. Ry. Co. v. E. T., V. G. Ry., 75 Ala. 275; Profile Cotton Mills v. Calhoun Water Co., 189 Ala. 181, 66 So. 50.
Appellant was the purchaser of certain standing timber under a deed stipulating for a reversion of the title to the owner if the timber was not removed within the time provided. When this bill was filed, the time limit had expired more than six months previously, and complainant had therefore lost the legal title thereto; and he seeks by this proceeding to have the court enforce by appropriate decree his right to a reasonable time thereafter in which to remove the timber, upon the ground that during the time stipulated he was prevented from the removal by the interference of the owner of the soil.
The complainant has sought to bring his case within the influence of Roberson v. Little, 200 Ala. 582, 76 So. 940. The principle that the complainant invokes rests upon the doctrine that "he who prevents a thing being done shall not avail himself of the nonperformance he has occasioned." Peshtigo Lbr. Co. v. Ellis, 122 Wis. 433, 100 N.W. 834; Sanders v. Clark, 22 Iowa, 275; note to Halla v. Rogers, 34 L.R.A. (N.S.) 120.
The litigation between the complainant and respondent Agnes Cox appears to have arisen over the contention of the complainant in this cause that he was a purchaser of all the pine timber without restriction, and the final decree appears to have established that he had assumed an erroneous position; for by this decree the deed was reformed, so as to carry out the intention of the parties. No injunction against the respondent to that suit was sought, and it is not claimed that physical force was used or threatened against the purchaser as to the cutting of this timber.
It may be seriously questioned that the complainant here has presented a case coming within the influence of the principle recognized in Roberson v. Little, supra; but we pass that question as unnecessary to be now determined. In the Little Case, it will be noted that the owner of the soil deliberately and persistently prevented the cutting of the timber by the purchaser until the expiration of the stipulated term, and for the purpose of thus depriving the purchaser of the benefits of his bargain. In that case this court fixed a period of 4 months within which to allow the purchaser to cut and remove the timber.
Even giving to the former litigation between these parties the weight and consideration insisted by the complainant, yet it appears that he had 6 months after the rendition of the final decree within which to remove this timber within the period stipulated in the deed. More than 6 months passed before the purchase by M. N. and Clarke Harris, and during all this period the complainant made no effort to cut and remove the timber. Respondent M. N. Harris makes affidavit that he inquired of complainant why he had not exercised the right to extend the time of cutting the timber, to which he replied that he was busy in Florida at the time with a large deal, and that he "never did bother with dimes when dollars were involved." Nor do we find that this complainant has entered a denial of this conversation; but, on the contrary, his conduct adds strong corroboration to the fact that the statement was made, and the statement itself serves as a fairly good explanation of his conduct.
We gather from the testimony of complainant himself that he had purchased this timber for a resale, nor does it appear to have been purchased in connection with any other body of timber. It covered only a small area, being situated upon a small tract of land containing less than 160 acres. M. N. and Clarke Harris, the purchasers, have with very ordinary facilities cut and removed half of this timber within 30 days, and we are persuaded from an examination of the proof offered that something like 60 days were a reasonable time within which to cut and remove the timber. As previously noted, complainant had not only 6 months from the termination of the litigation to the expiration of the contract; but another period of 6 months after the expiration of the time limit passed without any action upon his part, and no active interest is shown until the timber had been purchased by others.
Under any phase of the case, therefore, we are persuaded that complainant has had a reasonable time, but has failed to avail himself thereof, and he is therefore in no position to invoke the principle recognized in Roberson v. Little, supra. Upon questions of this character, where there is great doubt as to complainant's right, preliminary injunctive relief will be generally denied. 5 Pom. Eq. Jur. § 264; Profile Cotton Mills v. Calhoun Water Co., 189 Ala. 181, 66 So. 50.
The court below correctly decreed in dissolving the injunction, and this decree will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.