Coley v. English

• Decision Date: 16 December 1920
• Docket Number: 1 Div. 171
• Citation: 204 Ala. 691,87 So. 81
• Parties: COLEY v. ENGLISH et al.
• Court: Alabama Supreme Court

87 So. 81

204 Ala. 691

COLEY v. ENGLISH et al.

1 Div. 171

Supreme Court of Alabama

December 16, 1920

Appeal from Circuit Court, Monroe County; John D. Lee, Judge.

Bill by Frederick I. Coley against Arthur M. English, Jr., and others, to enjoin them, their agents and employees, from cutting and removing or from committing any other depredations upon any of the timber situated upon the lands described in the deed of the Englishes to John J. King, of December 25, 1905, pending the determination of a bill by complainant for the specific performance by the Englishes of their contract to convey said land to complainant, which is now pending in this court. From a decree dissolving the temporary injunction and dismissing the bill, complainant appeals. Affirmed.

Barnett Bugg & Lee, of Monroeville, for appellant.

Hamilton & Page, of Evergreen, and Hybart & Hare, of Monroeville, for appellees.

McCLELLAN J.

This appeal is from a decree sustaining demurrer to the bill filed by appellant against appellees, and also bringing up for review the action of the court in that decree in dissolving--on motion to dissolve for want of equity in the bill--a temporary injunction issued upon the filing of the bill. The primary, if not sole, object of this particular bill was to secure a temporary injunction to prevent the cutting and removal of timber.

A bill without equity will not support an injunction of any character. McHan v. McMurry, 173 Ala. 182, 187, 55 So. 793; Pearson v. Duncan, 198 Ala. 25, 28, 73 So 406, 3 A.L.R. 242; Hamilton v. Ala. Power Co., 195 Ala. 438, 448, 70 So. 737. Since it appears from the averments of this bill that there is now pending a bill--to which the same persons are parties as are made parties in this cause--to enforce specific performance of the lease-sale contract to be later mentioned, a contract material to the cause of the complainant in the previously pending litigation as it is material to him in the present proceeding, whether the present bill is but an effort to employ a "supplemental bill" without any necessity therefor or justification thereof (21 C.J. p. 540 et seq.; 5 Mich.Ala.Dig. p. 568 et seq.) is a question that may be pretermitted in view of the conclusion prevailing on this review.

On December 25, 1905, Arthur M. and Alice N. English conveyed by warranty deed, for a valuable consideration, to John J King, "all the merchantable timber now standing and growing" on land described in the lease-sale contract, before mentioned, and in this bill. The instrument was seasonably recorded, which was effective to carry notice to complainant of the title conveyed to King.

On December 8, 1914, Alice N. and Arthur M. English, the same persons who were grantors in the conveyance to John J. King, entered into a lease-sale contract, of plantations described therein, with complainant, Frederick I. Coley. It was stipulated therein that Coley might purchase the lands at any time before December 31, 1917, at a specified price and on terms defined in the writing. As appears this lease-sale contract was made with Coley about nine years after the deed to King was executed.

In obedience to the application of oftrepeated illustrations of principles so long recognized in this jurisdiction as to establish them as rules of property--a status this court is not at liberty to alter at this late day--it must be held that John J. King, or his successors in title, was the owner of the timber interest described in the deed to him, and still is the owner notwithstanding the time in which he should have removed the timber has expired. Heflin v Bingham, 56 Ala. 566, 28 Am.Rep. 776; Magnetic Ore Co. v. Marbury Co., 104 Ala. 465, ...