
    CASE 57. — ACTION BY JOHN L. GREEN AGAINST J. R. QUISENBERRY AND OTHERS.
    April 29, 1909.
    Green v. Quisenberry, &c.
    Appeal from Madison Circuit Court.
    J. M. Benton, Circuit Judge.
    Judgment for defendants, plaintiff appeals.
    Reversed.
    1. Injunction — Bon’d—Action—Petition.—Plaintiff, a life tenant, leased the land, agreeing to place and bold bis tenant in peaceable possession, but, before a crop bad been planted, the remaindermen sued both plaintiff and bis tenant for forfeiture of plaintiff’s life estate for waste, and obtained .an injunction restraining plaintiff and bis tenant from cropping the land. Held, that a petition on the injunction bond after the injunction had been dissolved, alleging such facts and that plaintiff was damaged by the loss of the rent, stated a cause of action, though it did jiot allege that the injunction expressly commanded plaintiff not to collect the rent under the lease, or restrained the tenant from paying it; the tenant not being liable for rent because of failure of consideration.
    2. Injunction — Duty to Obey — It is the duty of the party against whom an injunction is issued to obey it as long as it remains in force, regardless of whether it was rightfully or wrongfully issued,
    3. Injunction — Action on Bond — Petition.—Plaintiff in an action on an injunction bond is limited to the damages alleged.
    4. Injunction — Action on Bond' — Attorney’s Pees — Right to Recover. — iWlhere an injunction is the only relief sought, and gives that relief, if sustained, no recovery for attorney’s, fees can be had on dissolution of the injünction, but if ’injunctive relief is ancilliary, or is relied on to secure the relief when obtained, a recovery may be had on the bond' fbr reasonable attorney’s fees for services in dissolving the injunction; and hence, in an action by the remaindermen against the life tenant and his tenant ‘in possession to forfeit the life estate for waste, where an injunction was obtained against further waste, which was subsequently dissolved, the life tenant was entitled to recover reasonable attorney’s fees paid or incurred for services in dissolving the injunction, apart from services rendered in defending the action.
    A. R. BURNAM & SON attorney for appellant.
    
      We are u-ruable to concur in tbe conclusion of the trial judge that the opinion for Walden vs. Conn affords any support for the judgment rendered in this action, and is clearly differentiated from the opinion in that case. The appellee did not proceed forcibly and unlawfully, on the contrary he availed himself of the remedies provided by the statute. After the service of the injunction upon the appellant by the appellee, he could not proceed with the cultivation of the land, either by his tenant or by his own labor. He was commanded by the Commonwealth at the instance of the appellee to stop. The effect of this order was to render inoperative his contract to hold Minter in peaceable possession and to stop any cultivation of the land till the cause could be determined. The injunction granted appellee was not only to restrain Minter, the tenant, or any of his servants hut also to deprive appellant of the right to cultivate the land for the year 1908. In this suit we think that the trial court erred in sustaining appellees demurrer ana dismissing the appellants petition.
    W'e further ask a reversal with directions that the case be tried out on its merits.
    S. M. WALLACE and W. S. MOBERLY for appellee.
    In conclusion we ask that the judgment of the lower court sustaining the demurrer to, and 'dismissing the petition of the appellant, be affirmed. The appellant Green has his remedy against his tenant Minter for the rents he claims to have lost.
    CITATION O'F AUTHORITIES.
    Wlalden v. Conn, 84 Ky. 312; Bennett v. Vandyke, 11 Ky. L. R. 953; 24 Cyc. 926; 18 Am. & Eng. Ency of Law, 452; quoted in L. & N. R. R. Co. v. Moore, (Ky.), 101 S. W. 934; K. C. R. R. Co. v. Higgins, 9 K. L. R. 649; Trabue v. Talbott, 29 Ky. (6 J. L Mar.) 602; Robertson v. Rodes, 52 Ky. (13 B. Mon.) 261 and Elizabethtown R. R. Co. v. Price, 11 Ky. L. R. 367; Tiedm'an; Real Property, Sec. 187; Tiffany, Modern Law of real property, Vol. 1, page 97; Stubbins v. Village of Evanston, 136 III. 37; 29 Am. St. Reps. 300; Gluck v. City of Baltimore, 81 Md. 315; 48 Am. St. Rep. 515; Workman v. Mifflin, 30 Pa. St. 362; Bennett v. Lambert, 100 Ky. 737; Tyler v. Hamilton, 108 Ky. 120.
   Opinion of the Court by

Chief Justice Settle

Reversing.

This is ¡an appeal from a judgment of tbe Madison Circuit Court sustaining a demurrer to and dismissiug appellant’s petition; the action being one to recover upon an. injunction ‘bond damages appellant claims to biave sustained by reason of the wrongful issual of 'am injunction by procurement of the appellee J. R. Quisenberry, who, together with the /appellee R. E. Turner, as surety, executed the bond required to obtain it. It appears from the averments o'f the petition that appellant owns the life estate in a "60-acre tract of land in Madison county which he early in the year 1908 leased to Leonard Minter for a term o'f three years at am annual rental of $333.33 1-3. By the terms of the lease Minter was to clean up the land, put it in snifiajble condition for cultivation, and cultivate 50 acres of it in corn and tobacco. The lease also contained a covenant that appellant would place and hold 'Minter in peiaieeaMe possession of the leased premises. The latter took possession of the land, and immediately commenced to clean it up preparatory to its cultivation. After Minter had done considerable work in preparing the land for a crop, but before he had am opportunity to plant the crop, the appellee Quisenberry, owner in remainder of the land, brought in 'the Madison Circuit Court against the appellant as life tenant and Minter lessee of the land,- an action for waste and to recover the land by a forfeiture of the .life estate of the former and treble damages amounting to $500 for the alleged waste. In that action, following the execution of a proper bond therefor, the injunction in question Was obtained whereby the life tenant Was restrained from permitting performance by the lessee, Minter, of the covenants of the lease, and the latter from doing work lip on the land, and from pitching or producing a crop for or during the year 1908. Appellant and Minter filed answers to the petition in that case, denying the alleged waste, the right of appellee to the forfeiture or damages claimed, and controverting fee grounds alleged for the injunction. The trial of fee case, which occurred in October, 1908, resulted in a judgment dismissing fee action and dissolving-the injunction. Shortly after the rendition of that judgment, appellant instituted the present action agiainst appellee and the surety in the injunction bond to recover the damages resulting to him from the wrongful obtention by appellee of the injunction, which fee petition alleges is $350 for loss of rent on the land by reason of and during the continuance of the injunction and $250 fees paid his attorneys, mak ■ ing altogether $600.

The only question presented by this appeal for our consideration is: Does the petition in. the instant case state a cause of-action1? The circuit court held that it did not; and hence the demurrer interposed by appellees to ¡the petition was sustained. We think the court erred in sustaining the demurrer. Fairly construed, the averments of the petition -are- to the effect that the injunction not only prevented Minter, appellant’s tenant, from proceeding wife the work of clearing up the land,, preparing it for cultivation, and also from producing a. crop in 1908,but that it likewise prevented appellant from collecting of the tenant the rent for that year. The action whs against both appellant and his tenant and the injunction issued agiainst 'and executed up on. each of them. While it did not in express terms command 'appellant not to Collect the 'Stipulated rent or ¿restrain, the tenant from paying if, both were restrained by it from performing the rent conJtr'aot until it was too late to prepare the land for cultivation, or to raise a crop in the. year 1908. Obviously the tenant wlas not liable under the circumstances for that year’s rent, nor could appellain! by suit have compelled him to pay it; for the tenant, if sued for it, could have escaped liability upon the ground of a failure of consideration, as he .was not permitted to raise a crop that year, and received no benefit from his mere possession of the land. Besides, under a covenant of the lease, appellant was obliged to protect him in the peaceable possession of the le'aised premises, and the right to cultivate it ¡and produce a crop of com and tobacco upon .50 acres of it, no. matter from what source interference might come. Moreover, it was the duty :of appellant -and his tenant to obey the^ injunction as long as it remained in force, regardless of whether it was rightfully or wrongfully obtained; nor were they relieved of 'this duty until the injunction was by judgment of the court dissolved. The fact that -the injunction w-as wrongfully issued having been determined by the judgment dissolving it rendered in the former action, and appellant being protected by the injunction bond as well as his tenant, we conclude that the petition states /a' cause of action as'to the claim of -appellant for damages resulting from the loss of rent for the year 1908. But, as the petition does not -allege any other damage than what appelláht -sustained in the loss of rent, his- -recovery on that score should not exceed the amount he was !to receive from his tenant by way of rent for the year 1908, viz., $333.33 1-3.

The question of whether the further item of $250 dalma-ges by way of an attorney’s fee claimed in the .petition to have been expended by appellant in defeating the injunction, the reasonableness of which is duly alleged, can be recovered by him, is not free from doubt. The rule, however, seems to be that when the injunction is the only relief sought, and, in fact, gives the' relief, if sustained, no recovery for attorney’s fees can he had; but when the injunction is merely ancillary, or in, iaid of the relief s'ought, or is relied on to secure the relief when obtained, a recovery may be had on the bond for the payment of reasonable attor • ney’s fees when the defendant has succeeded in dissolving the injunction. Tyler & Apperson v. Hamilton, etc., 108 Ky. 120, 55 S. W. 920, 21 R. 1516 Turnpike Company v. Dulaney, 86 Ky. 518, 6 S. W. 590, 9 R. 697; Burgen v. Sharer, 14 B. Mon. 497. We gather from the averments of the petition in the instant case that the action in which the injunction was obtained agiainisit appellant land his tenant was brought by the remainderman to recover of appellant as life tenant the land the latter leased to Minter, on the ground that appellant by committing or suffering waste had forfeited h'is life estate therein which entitled the remainderman to immediate possession. The remainderman also sought to recover in that action of the life tenant treble damages for the waste committed, and, in addition, obtained the injunction to prevent the life tenant and his 'tenant from committing further waste to the land. In this view of the matter, it would seem that the primary purpose of the faction wais 'the recovery of the land and damages for the injury to it from the waste resulting from the life tenant’s acts or sufferance while in possession. If this be true, the injunction was not the only remedy, but was merely ancillary or in aid of the relief sought, for its object was to prevent further wlaste, and therefore 'alleged irreparable injury before the termination of the prime or real cause of action. Perhaps our meaning can be better explained by quoting the following illustration contained in Turnpike Co. v. Dulaney, supra: “So, in’ case of an injunction, when the widow asserts her right to dower, ¡and obtains an • injunction to stay waste, thejrighifc to dower mlay be conceded or litigated; and,' if it turns nut that the injunction was improperly granted and is dissolved, a recovery may be had for the attorney’s fees arising from the employment to dissolve the injunction. Injunctions, therefore, like attachments when dissolved, and are obtained as 'ancillary to an original proceeding, the obligors on the injunction bond are liable for a reasonable attorney’s fee. To this extent the-doctrine has been carried by this court as to the measure of recovery on attachment, !anld injunction bonds, but no further.”

While in the instant case'the .averments of the petition as t'o the ¡claim for attorney’s fees are somewhat indefinite, yet, on the whole, they seem to authorize a recovery-of attorney’s fees on the injunction bond, but the recovery can go no further than what would be a reasonable fee paid, or agreed to be paid, -by ¡appellant in the employment of'Counsel to resist and defeat the injunction. We have seen from the excerpt quoted above that an action upon an injunction bond is governed by the same rule that applies to 'an action upon an attachment bond. In either ease the damages that dan be recovered on the bond, including attorney’s fees, are such as.result from the order of injunction or attachment, ¡and not the damages incurred by reason of the action independent of the injunction or attainment. Trapnall v. McAfee, 3 Metc. 34, 77 Am. Dec. 152; Shultz v. Morrison. 3 Metc. 99; Caldwell v. Deposit Bank, 109 Ky. 197, 58 S. W. 589, 22 R. 684. S'o, in the matter of the attorney’s fee claimed'by appellant, we will say that, if the whole of it was incurred in defending the action in which the injunction was obtained, nothing by way of such fee can be recovered on the bond, but, if incurred in defending the injunction alone, it can be, or, if incurred partly in defending the injunction and partly in defense of the action, it is recoverable as far as 'applicable to the injunction. Johnson v. Farmers’ Bank, 4 Bush, 283; McClure v. Renaker (Ky.) 51 S. W. 317, 21 R. 360.

For the reasons-indicated, the judgment is reversed and cause remanded for further proceedings consistent with the opinion.

Petition hy appellee for rehearing overruled.  