BEST v. PARSONS, 207 Ala. 115 (1922)

BEST v. PARSONS, 207 Ala. 115 (1922)
92 So. 267

BEST et al. v. PARSONS et al.

6 Div. 572.Supreme Court of Alabama.
January 12, 1922.

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.Page 116

Ben G. Perry, Arthur Green, J. A. Lipscomb, H. P. Lipscomb, all of Bessemer, and T. J. Lamar, of Birmingham, for appellants.

The affidavit is not sufficient. 142 Ala. 604, 39 So. 29. One who seeks equity must do equity. 171 Ala. 533, 54 So. 881. It is not shown that one of the complainants has any interest in the subject-matter. 171 Ala. 533, 54 So. 881. Complainants have a plain and adequate remedy at law. 154 Ala. 634,45 So. 665, 129 Am. St. Rep. 71; 5 Michie’s Digest, 474.

McEniry McEniry, of Bessemer, for appellees.

Brief of counsel did not reach the Reporter.


It is the settled rule in this state that courts of equity “will * * * intervene for the protection of the lessor, or of the lessee, in a proper case, against a violation of the express or implied covenants of the lease, thus in effect enforcing specific performance of the contract.” McDaniel v. Callan, 75 Ala. 327, 329; Woolworth Co. v. Nelson, 204 Ala. 172,85 So. 449, 13 A.L.R. 820. There can be no question as to the equity of the bill here exhibited, unless complainants have an adequate remedy at law, which is in fact the main ground of objection presented by the demurrer.

The lease executed by complainants to the lessor of respondents contains a covenant against subleasing or assigning without the written consent of complainants; and for a breach of that covenant complainants may, by express agreement in the lease, re-enter the premises and terminate the lease, if he chooses to do so. But to exercise that option, which is, of course, enforceable in a court of law, complainants must, by its very terms, put an end to the lease, and discharge their immediate lessee from further obligation thereunder, thus leaving themselves without a tenant, and possibly at a season when a desirable and profitable tenant cannot be secured. Such a recourse and such a remedy cannot be regarded as adequate for the protection of the lessors’ right to prevent the alienation of the leasehold, for it would involve a surrender of all their rights under their contract with the lessee, Jones. We hold that the complainant Parsons is entitled to a specific performance of the covenant in question, and in that behalf to a mandatory writ of injunction, if the proper parties complainant and defendant are before the court.

That equity of the bill, it must be observed, is not aided by the allegations of injury to the restaurant business of the tenants who occupy the adjoining subdivision of the premises ? an injury which, so far as appears, does not affect in a legal sense any right of complainants. As to parties, the bill is patently defective in two respects.

The complainant Terry was but an agent of the complainant Parsons in making the lease to Jones, and has no such interest in the premises as to permit his joinder as a party complainant. On the other hand, the bill shows that Parsons and one Sam C. Harrell acquired the leasehold jointly, and it does not appear that Harrell has ever disposed of his interest. He is therefore a necessary party complainant.

Again, it appears that the only other party to the lease here sought to be protected is W. F. Jones, the tenant in chief of complainants, under whom the respondents claim as subtenants or assignees only. As between the subtenants and their lessor, Jones, the sublease or suboccupancy, whatever its character, is valid and binding, and no decree can be rendered effectively enforcing the terms of the lease to Jones unless he is brought before the court as a party defendant to the bill.

For the misjoinder and the several nonjoinders above pointed out the bill is subject to several grounds of demurrer, which make the objections aptly, and the trial court erred in overruling the demurrer.

The decree overruling the demurrer will be reversed, and a decree will be here rendered sustaining the demurrer as to the grounds above noted.

Reversed, rendered, and remanded.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.Page 117