163 Ga. 365 | Ga. | 1926
In the year 1935 W. C. Beck cultivated the farm which is the subject of the controversy in this case. During the latter part of the year W. C. Kah, who was then living in , Jacksonville, Florida, purchased the premises from Beck’s former landlord. After the purchase by Kah he and Beck entered into a contract by which Beck was to continue upon the land and cultivate the same for the year 1936. In some portions of the record Beck is referred to as a cropper; but it appears from the evidence that he did not occupy that relation in the technical sense of the term, for the reason that it was agreed that the landlord should have no control of the cultivation of the land, which is one of the absolute rights of the landlord where the relation of landlord and cropper exists. Beck was to use his own judgment in the operation of the farm, doing the work according to his own judgment and discretion, and not subject to the orders of Kah as to the manner in which the work should be done. Kah was to furnish two mules, farming implements, one half of the fertilizer, and a specified amount of money to be advanced to Beck in monthly installments. Beck was to furnish the necessary labor, and was to have the right of the use and occupancy of the dwelling-house and all other buildings on the premises, the garden appurtenant to the dwelling for his own separate use, necessary wood for the use of himself and family, and exclusive use of the pasture and pasturage. Beck was in the exclusive and undisturbed possession of the premises when Kah opened negotiations for a rescission of the contract. Beck notified Kali in writing that he had begun the per
It was error in the present case to grant an interlocutory injunction, because some of the facts just referred to were apparently evidence to the court. Beck had not surrendered possession, whether his possession was lawful or wrongful, or even though he had made preparations to find another place of abode in such an eventuality of being evicted. For that reason the injunction was mandatory, and therefore unauthorized by law. An order enjoining Beck from interfering in any way with Kah’s occupancy, use, or possession of the premises in dispute is nothing more or less than an equivalent of an order to Beck to remove at once from the premises. Upon Kah’s petition and prayers and the statement therein that he wanted the house and well where Beck was, because he could not conduct his farm without them, Kah was asking and was granted such exclusive possession for himself and wife as was incompatible with even concurrent possession on the part of Beck and his family. So it seems to us perfectly plain that the order can not be otherwise construed than as a mandate to Beck to remove. Consequently the injunction is mandatory, and it was not within the power of the judge to thus evict the plaintiff in error from his possession, though some other lawful means might have been applied. “The office of an injunction being, under the code of this State, merely to restrain and not to compel the performance of an act, this remedy is not available for the purpose of evicting a party from the actual possession of land, the right to which is in dispute between himself and another; and consequently such a result can not be indirectly accomplished by an order restraining the party so in possession ‘from further interfering with said lot of land, house and crop’ thereon. Such an order, being mandatory in its nature, would afford relief not within the proper scope of the writ of injunction. Civil Code, § 4922. Russell v. Mohr-Weil Lumber Co., 102 Ga. 563 [29 S. E. 271]. Applying this established rule to the facts of the present case, the court erred in granting the injunction ‘as prayed for.’” Vaughn v. Yawn, supra. Also in Glover v. Newsome, supra, this
Judgment reversed.