Bolling v. Crook

• Decision Date: 09 August 1894
• Citation: 104 Ala. 130,16 So. 131
• Parties: BOLLING v. CROOK.
• Court: Alabama Supreme Court

16 So. 131

104 Ala. 130

BOLLING v. CROOK.

Supreme Court of Alabama

August 9, 1894

Appeal from chancery court, Calhoun county; S. K. McSpadden Chancellor.

Bill by Jane P. Crook against George W. Bolling. There was a decree for plaintiff, and defendant appeals. Reversed.

Matthews & Whiteside, for appellant.

S. D G. Brothers, for appellee.

COLEMAN J.

The main purpose of the bill is to obtain an injunction restraining the appellant, Bolling, from trespassing upon the lands of complainant. On the 1st day of January, 1892, James Crook, husband of complainant, by written agreement, signed by himself and lessee, leased to respondent, Bolling, for a term of five years, certain lands. The lease contract contains mutual covenants, and stipulates, among other things, for the payment of an annual rent, and provides that "for a failure to perform and carry out fully the obligations assumed by said Bolling in this contract of lease the said Crook shall have the power and authority to re-enter on said leased premises, and enjoy the same as if no lease had been made." On the 24th day of February, 1893, the written lease was modified, in writing, so far as James Crook had covenanted to make certain advancements in money to the lessee, Bolling, for that year; but in all other respects the lease contract remained the same. The bill was filed January 10, 1894, and charges that the lessee, Bolling, "has failed to carry out fully the obligation assumed by him as shown in said lease contract." The covenants of the lessee are successively stated in the bill, each followed by an averment of noncompliance by the lessee, and in some instances facts are stated to show in what respect the covenant of the lessee was violated. The bill avers a re-entry of the leased land by James Crook, as provided for in the lease, his possession under the re-entry, and notice to Bolling not to trespass on the lands, the refusal of Bolling to keep off the premises, and his avowed purpose to cultivate the lands, in disregard of complainant's right under the declared forfeiture and re-entry. A temporary injunction issued as prayed for in the bill. The bill avers that relief by injunction is necessary to prevent irreparable injury and multiplicity of suits. The respondent filed a sworn answer, and submitted a motion to dismiss the bill for want of equity, and also a motion upon the answer to dissolve the injunction. These motions were severally overruled by the chancellor, and respondent appealed. We should have stated that the bill also prays for a cancellation of the lease made by her husband, James Crook, as a cloud upon her title.

In the brief of counsel for appellee it is argued that James Crook was not authorized in writing by complainant to make a lease of the lands for a term of five years, and therefore the contract was void under the statute of frauds. Whether the contract in the present case, even though entered into by James Crook without written authority, can be taken from under the influence of the rule declared in the case of Shakespeare v. Alba, 76 Ala. 351, and others, in which it was held that the statute of frauds had no application to a lease contract for a term of years which provided for the payment of rent in installments, and the lessee was placed in possession of the rented premises, and the landlord accepted payment of the rents, we deem it unnecessary to decide.

This question does not arise under the pleadings in this case. The bill expressly avers that the contract was made by "her husband, James Crook, acting for her and in her behalf," and it further avers that "James Crook, her husband, has complied in full with every duty and obligation assumed by him in said contract." The rights of complainant are based strictly upon a breach of the covenants by the lessee and the right to re-enter and re-entry by her husband for broken conditions as provided in the lease. There is not a hint in the bill that James Crook was not legally authorized to make the contract, nor an intimation that it is or was ever repudiated by her. The law is settled in this state that courts of equity have jurisdiction to enjoin trespasses upon land, but this jurisdiction is not exercised as a matter of course when a trespass has been committed by one person upon the land of another, or such a trespass is...