Opinion
8 Div. 717.
October 22, 1925.
Appeal from Circuit Court, Madison County; James E. Horton, Judge.
R. E. Smith and R. C. Brickell, both of Huntsville, for appellant.
Counsel argue for error in the decree, and cite Hardien-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657.
Douglass Taylor and Watts White, all of Huntsville, for appellees.
Equity will not grant an injunction to quiet possession, where both possession and the right of possession are disputed. Hamilton v. Brent Lbr. Co., 127 Ala. 78, 28 So. 698; Ashurst v. McKenzie, 92 Ala. 490, 9 So. 262; Kellar v. Bullington, 101 Ala. 267, 14 So. 466; McMillan v. Aiken, 182 Ala. 303, 62 So. 519. The remedy is at law and is adequate. 32 C. J. 141; Irwin v. Shoemaker, 205 Ala. 13, 88 So. 129.
Complainant's theory of his original bill is that it was a bill to protect his business from the wrongful and injurious interference of others, and hence that the possession, or right to possession, of the premises whereon the business was being conducted was not essential to the equity of the bill, relying upon the case of Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657.
It is to be noted, however, that in that and in other cases recognizing that principle the interference was by outsiders who were unlawfully disturbing the business itself, and not merely by insiders who were disturbing, not the business itself, but the owner's exclusive right to conduct and control the business.
The original bill in this case does not allege that the business itself had been disturbed, but only that complainant's clerks, who were occupying the premises by his permission, had usurped control of the business, had refused to be discharged, and were excluding, or attempting to exclude, complainant from possession and control.
Under the conditions alleged we think it is clear that the control of the business by complainant was inseparably connected with his control of the premises; and that, before he could invoke the injunctive aid of equity to protect him against the alleged interference with his business, it was necessary for him to show that he was lawfully in possession of the premises, under a right superior to that of respondents.
This did not appear except by doubtful inference, and the first amendment did not remedy the defect. The trial court did not err, therefore, in sustaining the demurrers to the original bill, and also to the bill as first amended.
We have examined the evidence with due care, and we think it fully supports the trial court's findings of fact and conclusions of law as set forth in his opinion supra.
Let the decree be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.