Opinion
4 Div. 120.
April 24, 1924.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
Wilkerson Brannen, of Troy, for appellant.
The bill is not sufficient as for an accounting or specific performance. 4 Pomeroy, Eq. Jur. § 1421; Pollak v. Claflin Co., 138 Ala. 644, 35 So. 645; Beggs v. Edison Elec. Co., 96 Ala. 295, 11 So. 381, 38 Am. St. Rep. 94; Tecumseh Iron Co. v. Camp, 93 Ala. 572, 9 So. 343; Terrell v. So. Ry. Co., 164 Ala. 423, 51 So. 254, 20 Ann. Cas. 901; Julian v. Woolbert, 202 Ala. 532, 81 So. 32; Crowson v. Cody, 207 Ala. 476, 93 So. 7; Lee v. Houston, 197 Ala. 652, 73 So. 327; Nobles v. Christian Craft, 113 Ala. 220, 20 So. 961; 3 Mayfield, Dig. 201. The bill shows no equitable ground for injunctive interference. 4 Pom. Eq. Jur. § 1361; 32 C. J. 85.
Ballard Brassell, of Troy, for appellee.
The allegations of the bill are sufficient for an accounting. Phalin v. Dearman, 181 Ala. 320, 61 So. 941; Julian v. Woolbert, 202 Ala. 530, 81 So. 32; Compton v. Gilder, 176 Ala. 309, 58 So. 271; Lindsey Lbr. Co. v. Mason, 165 Ala. 194, 51 So. 750; Phillips v. Birmingham Ind. Co., 161 Ala. 509, 50 So. 77, 135 Am. St. Rep. 156; 1 C. J. 616. There being equity in the bill, and its allegations being here admitted, the motion to dissolve the injunction was properly denied. 4 Pomeroy Eq. Jur. (4th Ed.) § 1357.
Defendant, appellant, demurred to appellee's bill on the sole general ground that it contained no equity, and on that ground also moved the court to dissolve the temporary injunction by which appellant had been enjoined from the further prosecution of an attachment suit against appellee or otherwise interfering with appellee in the operation of a farm he had leased from appellant. The demurrer was overruled, the motion to dissolve was denied, and this appeal followed.
We are far from holding that the bill in this cause is proof against special demurrer; but we do think there is equity in the bill, and that appellant's demurrer and motion to dissolve were properly overruled and denied. Without considering defects of form (McDuffie v. Lynchburg Shoe Co., 178 Ala. 268, 59 So. 567), we read the bill to mean that appellee under a contract of lease with appellant is entitled to the possession of the farm for the term of five years — the necessary implication being that he is to cultivate the farm during the term — paying a part of the crops thereby produced to appellant, that he is not indebted to appellant on any account, but that, nevertheless, appellant by suing out an attachment against appellee, and by other means averred in the bill, has interfered with appellee's possession and cultivation of the farm. This gives the bill equity.
"Injunctions are granted with great freedom to restrain breaches of covenants between landlord and tenant." 4 Pom. Eq. Jur. (4th Ed.) §§ 1707-1708. The acts on the part of appellant averred in the bill amount to a breach of the necessarily implied, if not expressed, covenant that appellee should, so far at least as concerned the acts of appellant, be secure in the use and enjoyment of the property, and the injury done thereby is irreparable, as the bill avers, because appellee, if obliged to depend on his remedy at law, would have difficulty in securing a proper estimate of damages. 4 Pom. Eq. Jur. (4th Ed.) §§ ubi supra; Morris v. Iden, 23 Cal.App. 388, 138 P. 120. The bill is not one to decree the performance of a contract, but is one, by injunction, to prevent the destruction of contractual obligation. Hendricks v. Hughes, 117 Ala. 594, 23 So. 637. Nor does its equity depend upon any necessity shown for an accounting. The equity of the bill is that the court should enjoin any wrongful act of the lessor which will make the lease useless or of less value, but for which appellee is without complete and adequate remedy in the ordinary course of law. Authorities supra.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.