28 S.E.2d 649 | Ga. | 1944
1. An option to purchase land does not, before exercise of the option, vest in the holder of the option any interest, legal or equitable, in the land itself.
2. The petitioner occupied described lands under a lease contract with the life-tenant and an option contract executed to him by the remaindermen. Thereafter the life-tenant conveyed to one, who in turn conveyed *182 to another, a corporation, the right to cut certain described timber on the lands. The corporation erected a sawmill on the land and began cutting the timber. The petitioner brought an action, seeking damages and an injunction against the life-tenant, his grantee, and the grantee corporation, solely under an asserted title as the holder of the option contract. Held, the petitioner, not having been shown by the evidence to have acquired title to the lands by the exercise of the option contract or otherwise, was not entitled to an injunction against the named defendants to restrain them from cutting and removing timber from the lands; accordingly, the order of the court granting an injunction on condition that bond be given by the petitioner by a certain date was not harmful error against him.
There was conflicting evidence as to whether or not the cutting of six-inch timber would constitute waste or be good husbandry, one of the issues made in the case; petitioner contending that F. L. Hicks had only a life-estate in the lands after his conveyance to his children on January 16, 1900, and could not legally grant to anyone the right to cut and remove the timber therefrom; and the defendants contending that F. L. Hicks had the right to cut timber, as he had been doing before leasing the lands to petitioner and without objection from the grantees in the deed of January 16, 1900, in which a life-estate was reserved in F. L. Hicks. The petition and evidence for the petitioner contain many references to his occupation of the premises under a lease from F. L. Hicks; the petition as amended being introduced in evidence and also alleging: "This act of the defendant [the cutting and removing timber from the leased lands by Georgia Morain Corporation] will cause irreparable injury and damage to the property for the reason that the timber is growing and increasing in value; when the timber is cut it will cause the land to wash and erode, and in cutting and felling the trees the young and growing pines less than six *184 inches in dimeter will be broken, damaged and largely destroyed. This constitutes a trespass against petitioner, the holder of the option, and will cause irreparable damage to him, and he is entitled to come into court and have the defendant Georgia Morain Corporation enjoined from further interfering with his possession and from cutting and removing any of the timber, for all of which he prays. But for the fact that he was to have the option to purchase the lands hereinbefore described, he would not have leased said lands. He declined to lease the same or any part thereof until the option was executed to him, and . . by reason of his improvement of said lands in expending the money heretofore mentioned he has an interest in the lands, and there was such consideration for the option and such part performance that he is entitled to maintain this action and to have the relief sought. . . Each and all of said acts of the defendants were committed in knowledge of the rights of petitioner and in absolute violation of his rights in the premises and constitute a trespass against his rights in said property, and the acts have made it necessary for petitioner to employ counsel to bring this suit in order to protect his rights in the premises, and because they were knowingly and wilfully committed defendants are liable to petitioner, and he prays judgment against each of the defendants for the sum of $200. There is growing on the 60 acres of timber lands pine timber of some 200,000 to 300,000 feet, and good husbandry and management of timber would be not to cut and remove any growing timber under twelve inches in diameter at the ground, and to cut and remove timber as small as six inches in diameter constitutes the worst sort of waste, resulting in irreparable damages to the premises and petitioner."
The petitioner had not exercised his right under the option relied upon at the time of the filing of the present action.
The court entered an order as follows: "Upon consideration and after hearing evidence the injunction heretofore granted is continued of force upon the plaintiff giving bond in the sum of $750, to be approved by the clerk of Gordon superior court, conditioned to indemnify F. L. Hicks and Georgia Morain Corporation and P. E. Haynes against loss by reason of being enjoined. Upon failure of giving said bond on or before September 20th, let the injunction be dissolved." The petitioner excepted on the ground that the requirement that the injunction be dissolved unless bond be given *185 as stated was error for the reason that he was entitled to an injunction unconditionally. The present action is clearly one in which the petitioner seeks relief under an asserted title by reason of the option contract, and not under the lease contract which is set out as an exhibit attached to the petition. He asks damages for timber already cut, and seeks to have set aside as clouds upon his asserted title the conveyances under which the defendant Georgia Morain Corporation claims the right to cut and remove the timber; to have the defendants enjoined from such acts because they will cause irreparable injury and damage to the timber which is growing and increasing in value, and the cutting thereof "will cause the land to wash and erode;" the growing trees less than six inches in diameter will be broken, damaged, and largely destroyed; all of which he contends constitutes a trespass against him as the holder of the option to purchase.
"An option to purchase land does not, before acceptance, vest in the holder of the option any interest, legal or equitable, in the land itself. 39 Cyc. 1237, G (1); 27 R. C. L. 334, 335. Nor, according to the weight of authority, does the interest of the optionee in the land, by fiction, date back from the granting of the option, in case the option is accepted and a contract of sale made. 23 A.L.R. 1217; Caldwell v. Frazier,
In a proper case seeking to restrain irreparable damage to the proper exercise of his lease, the tenant would be entitled to injunction. In Anthony Shoals Power Co. v. Fortson,
Judgment affirmed. All the Justices concur, except Jenkins,P. J., absent on account of illness. *187