Galbreath v. Thayer

• Decision Date: 06 June 1927
• Docket Number: 25271
• Citation: 147 Miss. 556,113 So. 180
• Court: Mississippi Supreme Court
• Parties: GALBREATH et al. v. THAYER et al. [*]

113 So. 180

147 Miss. 556

GALBREATH et al. v. THAYER et al. ^[*]

No. 25271

Supreme Court of Mississippi

June 6, 1927

(Division A.)

1 Fixtures. Houses constructed by tenant, in addition to houses which lease provided should not be removed, were not fixtures. Where lease provided that lessee should hot have right to remove certain three houses constructed by him on premises, other houses constructed thereon by lessee did not constitute fixtures, since provision relative to right to remove the three houses clearly implied an agreement or understanding that lessee would have right to remove remaining houses.

2. Landlord and Tenant. Equity will not permit insolvent tenant to remove improvements, but will apply value thereof as credit on past-due rent.

Where tenant admitted that he had not complied with, terms of lease by paying rent and that he was insolvent and wholly unable to pay rent, equity will not permit him to remove improvements from leased premises placed thereon by him and which retain their character as personalty by reason of prior agreement but will apply value of such improvements as credit on past-due rent.

3 Injunction. Attorney fees were improperly allowed for securing dissolution of ineffective injunction.

Where at time of injunction restraining defendant from cutting or removing timber, all timber had been removed and injunction was to that extent ineffective, attorneys' fees for securing dissolution of injunction were improperly allowed.

4. Injunction. Complaint seeking recovery for timber should not be dismissed on dissolving injunction against cutting or removal of timber.

Bill of complaint seeking recovery for value of timber cut and removed from premises should not have been dismissed on dissolution of injunction restraining further purchasing, cutting, and removal of timber from land.

Division A

APPEAL from chancery court of Washington county.

HON. E. N. THOMAS, Chancellor.

Suit by T. L. Galbreath and others against Fred K. Thayer and others. From a decree dissolving an injunction and awarding damages, complainants appeal. Affirmed in part, and reversed in part, and remanded.

Decree affirmed in part, reversed in part, and cause remanded.

Watson & Jayne, for appellants.

I. Before the opening of the case at the hearing, the appellants moved the court to remand the case for final hearing; at the conclusion of the evidence this motion was renewed. Inasmuch as the evidence made it plain that the case should have been heard upon its merits, the motion of appellants should have been sustained and the cause remanded for final hearing. This was especially true as to the case made out against appellee Thayer. See Alcorn v. Saddler, 66 Miss. 221, 5 So. 694; Madison County v. Paxton, 56 Miss. 679; Stewart v. Belt, 19 So. 957; Citizens Bank & Trust Co. v. Harpeth Nat'l Bank, 82 So. 329.

II. The court erred in dissolving the injunction and awarding damages. While the main and controlling title to relief set up in the bill of appellants is that of relief by way of quieting title, still in addition thereto appellants pray for the recovery of rents for the several years of the occupancy of appellee Thayer, and under the circumstances of the case such additional action in equity will lie. Pomeroy's Eq. Juris. (6th Ed.), section 189; Fleming v. Stansell, 13 Tex. Civ. App. --, 36 S.W. 504; De Laval v. Shapless, 134 Iowa 28, 111 N.W. 438; Memphis & Cr. Co. v. Greer, 3 Pickle (Tenn.) 698, 11 S.W. 931, O'Neill v. Perryman, 102 Ala. 522, 14 So. 898.

Without the application of the principles laid down by the foregoing authorities controlling equitable set-off, appellant Galbreath in the instant case would be without remedy.

It will be borne in mind that under the provisions of the Mississippi statute for quieting title to lands a writ of possession may be awarded in the decree against a defendant in possession; therefore, the action partakes primarily of the nature of an action to quiet title and, secondly, of an action of equitable ejectment; hence, the principles of law governing actions to recover mesne profits would be properly applicable in the instant case with regard to equitable set-off. Especially is this true where the tenant had, under the terms of the lease obtaining at the time of the making of the improvements, an option to purchase the land.

The Mississippi statute, section 1848, Code of 1906, allowing mesne profits to be collected in actions in ejectment is but a statutory enactment of the equitable principle theretofore laid down in such cases. Before such statutory enactment, in proper cases, courts of equity had applied the doctrine of equitable set-off. Murray v. Gouvenour, 2 John. Cas. 438; Jackson v. Loomis, 4 Cowan 168; Waterman on Set-offs, sections 537-38. The following authorities in principle support the contention of appellants. 34 Cyc., page 633, section f; pages 636-37-38, sections 4 and b.

III. Contractual right to remove improvements. The period of occupancy of appellee Thayer was covered by two written leases signed by him, and a third written lease signed by the landlord, appellant Galbreath, under which Thayer occupied for the year 1924. In none of these writings is there any stipulation whereby appellee Thayer had the right to remove any of the improvements. Oral evidence is not admissible to contradict the terms of these writings. More than this, if the improvements be fixtures, as contended by appellants, they are part of the land and the right to remove the same must have been committed to writing to meet the requirements of the statute of frauds.

Even if the appellant landlord had given appellee Thayer permission to remove the improvements from the leased premises, it would seem that as a condition precedent to the right of the tenant to remove such fixtures and improvements that he would in equity be required to show that he has performed all of the conditions and covenants of the lease, and especially that he has paid all of the rents due under the lease. Van Vleck v. White, 72 N.Y.S. 1026; Clements v. Murphy, 40 Mo. 121; Mathinet v. Giddings, 10 Ohio 364.

Appellee should not be permitted to remove the improvements in question, he being hopelessly insolvent, until he, appellee, had performed the conditions of the lease.

Boddie & Farish, for appellees.

I. Galbreath authorized his tenant, Thayer, to sell and dispose of the timber. Therefore, Galbreath is bound by the sale made by Thayer to Lester, under the authority vested in Thayer by Galbreath. Williams v. Sayers, 79 Miss. 50; Turner v. Planters Lbr. Co., 92 Miss. 767.

II. The bill was filed on the theory that the buildings erected by Thayer on the plantation were fixtures and title thereto became vested in Galbreath. The plantation was leased for agricultural purposes and it was necessary to have the buildings in order to farm and operate the plantation. They are the same as trade fixtures and even without the lease contracts in evidence, Thayer was the owner thereof and had the right to remove them at the expiration of his lease. This question has never been passed upon by this court; but see McMath et al. v. M. Levy & Sons, 74 Miss. 450; Van Ness v. Pacard, 2 Peters 137.

We concede that if the injunction was merely ancillary to the principal relief sought by the bill and its dissolution was only incidental to the defense, then the injunction should not have been dissolved as to Thayer, and the solicitor's fees should not have been allowed by way of damages. We think the rule is correctly stated by Judge WHITFIELD in Curphy & Mundy et al. v. Terrell et al., 42 So. 235.

We submit that simply because the bill asked for a decree against the agricultural products for the 1924 rent and for a decree for money from the sale of timber by Thayer, this is not such equitable relief as would entitle appellant Galbreath to hold by injunction the houses owned by Thayer on the plantation conveyed by Galbreath, before the filing of the bill to the other, appellants, Easton and Moser.

OPINION

COOK, J.

This is an appeal from a decree of the chancery court of Washington county dissolving an injunction sued out by the appellants against the appellees, and awarding solicitors' fees as damages on the injunction bond. The hearing of the motion to dissolve was had upon an amended bill of complaint, answers of the several appellees, and oral and documentary proof.

The bill of complaint as amended alleged that the appellant Galbreath was the owner of certain lands situated in Washington county; that the appellee Thayer had leased this land from Galbreath during the years 1921, 1922, and 1923 under a written lease; that appellee Thayer agreed to lease the land for the year 1924, first taking up the matter thereof by letter dated February 5, 1924, addressed to Galbreath, with which letter he inclosed the form of a lease which he desired Galbreath to sign, but which was not executed by Galbreath; that the appellant Galbreath then drew up a lease in duplicate, signing each copy and forwarding both to appellee Thayer, with the request that he sign both copies of the proposed lease contract and return one of them to the appellant Galbreath; that Thayer kept both copies of this lease and occupied the said plantation thereunder for the year 1924, cultivating and operating the same and growing crops of cotton, corn, and hay thereon; that under the terms of this lease for the year 1924 Thayer owed Galbreath one thousand five hundred dollars as rent for that year, to be paid according to the terms of the lease; that under the terms of the lease the agricultural products grown on the land during the year 1924 were to be applied on the rent as fast as harvested, and that the appellant Galbreath had a landlord's lien on...