Opinion
25838.
ARGUED JUNE 8, 1970.
DECIDED SEPTEMBER 10, 1970.
Injunction. Sumter Superior Court. Before Judge Marshall.
Guy V. Roberts, Jr., for appellant.
Smith, Crisp Hargrove, Henry L. Crisp, for appellee.
The trial court erred in granting an interlocutory injunction which enjoined immediately and completely the defendant's possession of his claimed leasehold, which was a remedy appropriate to a permanent injunction, especially since the evidence adduced at the interlocutory hearing showed a prima facie right of possession in the defendant.
ARGUED JUNE 8, 1970 — DECIDED SEPTEMBER 10, 1970.
Mrs. Eugenia P. Geise brought an action on March 19, 1970, as executrix of the estate of Nell LeNoir Council, deceased, against T. E. Stephens, Jr., to temporarily enjoin his allegedly unauthorized and unlawful possession of a certain described tract of farmland, constituting a portion of the testatrix's estate, so that a prospective purchaser could be put in possession of said tract for the crop year 1970. There is also a prayer for mesne profits. Defendant answered, alleging, inter alia, that he was in lawful possession under an oral, one-year rental contract; that he had thus rented this land, as a portion of an approximately 800-acre tract owned by plaintiff's testatrix and Mrs. Betty McKee, for 9 or 10 years on a year-to-year basis; that for 3 or 4 years, both before and after the deaths of said owners, he had rented the land through a Mr. Thomas Argo, without any objections having been raised thereto until the plaintiff had challenged his right of possession on March 18, 1970; that the plaintiff was estopped to interfere with his possession before his year's tenancy was expired and also estopped by laches.
At the interlocutory injunction hearing on March 26, 1970, the following evidence was adduced: Defendant had been renting this approximately 60-acre tract, which was a part of the much larger DeSoto Seed Farm, for 6 or 8 years from its owners, plaintiff's testatrix and Mrs. McKee. When they became old and bedridden, he transacted the rental each year with Mr. Thomas Argo (who he thinks is a nephew of the deceased owners) by signing a rent note in January payable to DeSoto Seed Farm in the fall after harvest. He knew that there was some controversy as to the land when he negotiated the 1970 lease and found out later that the larger farm was to be divided up, but had no reason to believe that this would have any bearing on his renting and farming it. Argo brought him the rental note, made payable to DeSoto Seed Farm as usual, in January 1970 and he signed it. Defendant testified that he had no reason to believe that Argo did not have authority to rent him the land and that he (defendant) had never heard any objections from anyone to his dealing in the manner described until he was notified on March 18, 1970, that the tract of land had been rented to someone else. The plaintiff admitted that she had known that the defendant was actively farming the land when she became executrix on February 7, 1968. When defendant found out the property was for sale, he had offered to buy it from plaintiff for more than the price offered by another prospective buyer.
At the conclusion of the hearing, the court entered the following order: "The above matter having come on for a hearing on March 26, 1970, and after considering the evidence and the argument of counsel; It is the order of this court that the defendant, T. E. Stephens, Jr., be restrained from possessing in any manner the real estate described in the petition until the further order of this court, but that he have permission to enter upon said land on March 27, 1970, for the purpose of removing any personal property of his located thereon. The plaintiff, Mrs. Eugenia P. Geise as executrix of the estate of Nell LeNoir Council, deceased, is hereby put in possession of said described land. It is further ordered that the motion to dismiss filed by the defendant and the motion for certification for direct appeal of said order be and the same are hereby overruled. This 26th day of March, 1970."
Defendant's notice of appeal from said order was filed in this court on April 10, 1970.
The trial court abused its discretion in granting an "interlocutory" injunction which required the defendant to take the affirmative action of immediately and completely abandoning possession of the land in question, which action is appropriate to a permanent injunction, issued after a hearing thereon. McKinnon v. Neugent, 226 Ga. 331 ( 174 S.E.2d 788) and cit. The defendant's answer to the complaint, together with the evidence adduced upon the interlocutory injunction hearing, raised genuine issues of material fact which must be resolved at a permanent injunction hearing. On the issue of Mr. Argo's authority to rent the land in question, for example, at least a prima facie authority was raised by the evidence of defendant's having rented the land through him for a number of years without ever having heard any objections from anyone as to this manner of negotiating the one-year leases. Although defendant's counsel stated at the interlocutory hearing that he had been unable to secure Argo's presence at that hearing, it is entirely possible that Argo's authority to rent to the defendant could be established at a permanent injunction hearing by Argo's testimony or other evidence. From a review of the evidence adduced at the interlocutory hearing, the substance of which is set out in the statement of facts hereinabove, it is clear that such evidence was not sufficient to authorize the order immediately and completely depriving the defendant of his possession based on the interlocutory hearing. "Moreover, to have denied the temporary injunction or, at least, to have not required the performance of affirmative action, would not work `irreparable injury' to the present plaintiff or leave her `practically remediless' in the event she should establish the truth of her contention on the hearing for a permanent injunction." McKinnon v. Neugent, supra, p. 333. On the other hand, such "interlocutory" injunction as was here granted, operated oppressively on the defendant's rights, by depriving him of possession of his claimed leasehold in the absence of evidence authorizing a finding that he was not entitled thereto. McKinnon, supra, p. 332 and cit.
The trial court was empowered to suspend or modify the injunction after the appeal was taken therefrom, by requiring a bond of plaintiff or otherwise, so as to insure the security of the rights of the defendant adverse party. Ga. L. 1966, pp. 609, 664, as amended, Ga. L. 1967, pp. 226, 239, 240 ( Code Ann. § 81A-162 (c)). The court took no such action, however, and defendant has remained out of possession of the land since the effective date of the interlocutory injunction.
The judgment of the court immediately enjoining the appellant's possession of his contended leasehold upon the interlocutory injunction hearing is, therefore, reversed.
Judgment reversed. All the Justices concur.