Coley v. English
Coley v. English
Opinion of the Court
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.
[1j A bill without equity will not support an injunction of any character. McHan v. McMurry, 173 Ala. 182, 187, 55 South. 793; Pearson v. Duncan, 198 Ala. 25, 28, 73 South. 406, 3 A. L. R. 242; Hamilton v. Ala. Power Co., 195 Ala. 438, 448, 70 South. 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, fora 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. *692 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. Ooley. It was stipulated therein that Ooley 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.
“Where the owner of land conveys to another the title to * * * standing timber ( * * * realty in the view of the law), the result is to create two closes adjoining but separate (the one the land proper, and the Other * * * the standing timber * * * ).”
The bill is without equity. The decree is affirmed.
Affirmed.
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Reference
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- COLEY v. ENGLISH Et Al.
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