Opinion
19019.
SUBMITTED JULY 12, 1955.
DECIDED OCTOBER 10, 1955.
Injunction. Before Judge Stephens. Laurens Superior Court. May 21, 1955.
W. W. Larsen, Jr., for plaintiff in error.
E. L. Stephens, Sr., contra.
1. The exception being to an order refusing to an order refusing to grant an interlocutory injunction, there is no merit in the motion to dismiss on the ground that no exceptions were taken to the judgment dissolving the restraining order.
2. Under a proper construction, the deed here involved conveyed the land to the defendant for life, and gave the remainder interest to the petitioner. Mitchell v. Spillers, 203 Ga. 565 (2) ( 47 S.E.2d 564).
3. "The tenant for life shall be entitled to the full use and enjoyment of the property if in such use he exercises the ordinary care of a prudent man for its preservation and protection, and commits no acts tending to the permanent injury of the person entitled in remainder or reversion. For the want of such care and the wilful commission of such acts, he shall forfeit his interest to the remainderman, if he shall elect to claim immediate possession." Code § 85-604.
4. The above Code section has been construed to mean "that the tenant for life is entitled to the full use and enjoyment of the property, so that, in such use, he exercises the ordinary care of a prudent man for its preservation and protection, and commits no acts tending to the permanent injury of the person entitled in remainder or reversion. In determining what amounts to waste, regard must be had to the condition of the premises and the inquiry should be, did good husbandry, considered with reference to the custom of the country, require the felling of the trees, and were the acts such as a judicious, prudent owner of the inheritance would have committed." Woodward v. Gates, 38 Ga. 205, 213; Roby v. Newton, 121 Ga. 679 ( 49 S.E. 694, 68 L.R.A. 601); Lee Bradshaw v. Rogers, 151 Ga. 838 ( 101 S.E. 371).
5. Applying the above principles, where, as here, in a suit for injunction to prevent waste, the defendant by her answer admitted that she was cutting and selling some popular and gum timber, but insisted that it would not injure the realty, the trial court should not have refused to grant an interlocutory injunction, based solely upon a consideration of the sworn pleadings, without hearing evidence on the question of whether or not the cutting of timber in this instance constituted waste. Accordingly, the judgment of the trial court refusing to grant an interlocutory injunction is reversed with direction that evidence be heard on the question of waste.
Judgment reversed with direction. All the Justices concur.
SUBMITTED JULY 12, 1955 — DECIDED OCTOBER 10, 1955.
Mrs. Reva Graham filed in Laurens Superior Court, against Mrs. Annie Bryant, a petition which alleged: On March 15, 1949, James B. Bryant, deceased, who was the father of the petitioner and the husband of the defendant, executed a deed wherein, after reserving a life estate to himself, he conveyed a described tract of land in the Sixteenth Land District of Laurens County, consisting of 100 acres more or less, to the petitioner, "on the condition that my wife Mrs. Annie Bryant have the legal right to possess and control and use the above described lands, enjoy the rents and profits from same for and during her natural life. And at her death the grantee in this deed Mrs. Reva Graham take possession of same based on her title which I have this day placed in her." Approximately one-half of the realty is not in cultivation, and the principal value of the land is the timber thereon. The defendant is in possession under the life interest granted to her, and is proceeding without authority to cut the timber, which is not necessary by normal farming practice, and is not required to protect the defendant's life interest, but her purpose is merely to realize the profit from this part of the realty, thereby wasting and depleting the remainder interest of the petitioner. The timber would greatly increase in value during the next few years, and the threatened cutting by the defendant, who is insolvent, can not be accurately measured in money. The petitioner prayed: that process and a rule nisi issue, that the defendant be temporarily and permanently enjoined from cutting the timber, and for general equitable relief.
By her answer in the nature of a cross-petition, the defendant averred: She was entitled under the condition of her husband's deed to cut or sell any timber, and use the proceeds without accounting to the petitioner. It was not her intention to sell any of the timber, except as it may be necessary to obtain money with which to purchase the necessaries of life. None of the pine timber was being cut, and the removal of poplar, gum, and other timber, which will measure approximately 10,000 feet and which will bring $20 per thousand, will in no wise injure the realty. The defendant is compelled to sell some of the timber to obtain funds to make minor repairs on the houses and to secure money to support and maintain herself, she being more than 60 years of age, and unable to work and earn a living. After the death of the defendant's husband in 1949, she rented the cultivated portion of the land to the petitioner for farming purposes, and the petitioner is indebted to her in the sum of $250 for two years' rent. The defendant prayed that she recover judgment against the petitioner in the sum of $250 principal, that the relief prayed for by the petitioner be denied, and that the temporary restraining order heretofore granted be dissolved. The petitioner filed a response, denying the averments of the defendant in her cross-petition.
On the hearing for a temporary injunction, both parties having announced ready, the pleadings were read to the court by the attorneys for the respective parties. Immediately thereafter and before the petitioner could present evidence, counsel for the defendant made an oral motion to dismiss whereupon that question was argued by the respective attorneys. Immediately after the argument, the trial court dissolved the previous restraining order. May 19, 1955, having been set for a hearing of the petitioner's suit for a temporary injunction, and no express ruling having been rendered thereon, the petitioner on May 21, 1955, presented to the trial court a written motion for a ruling upon her prayer for a temporary injunction, whereupon the trial court denied the petitioner's prayer for an injunction, to which judgment refusing an interlocutory injunction the petitioner excepted and assigns error thereon as being contrary to law, equity, and justice.