December 22, 1919. The opinion of the Court was delivered by This is an appeal from an order setting aside a temporary order of injunction. On the 25th day of January, 1918, the plaintiff and the defendant entered into an agreement, in the presence of two subscribing witnesses, which contains these provisions:
"This indenture between James R. Hood, the lessor, and C.S. Edens, the lessee, witnesseth: That the lessor agrees to lease to the lessee about twenty acres cleared land, known as a portion of the Pine Grove place, for agricultural purposes, to hold the same to the lessee, from the 1st day of January, A.D. 1918, to the 31st day of December, A.D. 1918. And the lessee on his part agrees to pay to the lessor, as rent for the same, sixty-five ($65) dollars, which shall become due and payable and deliverable, on or before the 1st day of October, A.D. 1918, at St. Stephens, S.C. * * * The lessee agrees to take good care of the premises, and to deliver possession of same, at the expiration of the lease, without further notice. * * *"
The plaintiff refused to lease the land to the defendant for the year 1919, but on the 20th of January, 1919, entered *Page 187 into an agreement with E.T. Crawford for the use of the land during that year. The defendant did not abandon the land, or surrender its possession. When E.T. Crawford attempted to prepare the land for cultivation, the defendant threatened to use violence, and forced the tenants of Crawford to get off the premises. The title to the land is not involved, but merely the right to its possession. On the 25th of January, 1919, his Honor, Judge Bowman, made an order, without notice to the defendant, which provides:
"That the defendant, his agents, servants, employees, and all persons claiming by, through, under, or with him, be, and they are hereby, enjoined and restrained, until the further order of this Court, from entering upon the tract of land described in the complaint, or from plowing or otherwise trespassing thereon."
On the ____ day of March, 1919, his Honor, Judge Wilson, on notice of a motion to the plaintiff, granted an order dissolving the temporary injunction, and the defendant appealed.
The practical effect of Judge Bowman's order was to take the land out of the possession of the defendant, and to deliver it to the plaintiff's lessee.
"It is not the province of a preliminary injunction to compel the transfer of property of any kind from one party to another. The party asking for an injunction is assumed to be in possession of the property in respect of which he demands protection, and all the injunction can require on the part of the opposite party is that he should forbear from interfering with that possession. He cannot be required to perform any act whatever. If the plaintiff cannot enjoy his rights without compelling the defendants to perform some act, he must wait until he has established them by his judgment." Columbia W.P. Co. v. Columbia, 4 S.C. 388;Marion Co. v. Tilghman Co., 75 S.C. 220, 55 S.E. 337;Montague v. Hood, 78 S.C. 222, 58 S.E. 767; Evans v.Mayes, 81 S.C. 188, 62 S.E. 207; Northwestern R.R. Co. *Page 188 v. Colclough, 84 S.C. 37, 65 S.E. 950; Railroad Co. v.Railway, 88 S.C. 464, 71 S.E. 34; Lumber Corporation v.Lumber Co., 89 S.C. 143, 71 S.E. 820.
Parenthetically we should say, in fairness to his Honor, Judge Bowman, that on showing made before him for the preliminary restraining order it appeared that plaintiff was in possession of the land, and that defendant was trespassing thereon, and, therefore, that there was no error in granting the order. But, on the showing made before his Honor, Judge Wilson, on the motion to dissolve Judge Bowman's order, it was made to appear that defendant was in possession, and had never surrendered it to the plaintiff, and, therefore, Judge Wilson properly vacated Judge Bowman's order, in accordance with the principles herein stated.
Affirmed.