Midland Timber Co. v. J.F. Prettyman & Sons

• Decision Date: 23 April 1914
• Citation: 81 S.E. 484,97 S.C. 247
• Parties: MIDLAND TIMBER CO. v. J. F. PRETTYMAN & SONS ET AL.
• Court: South Carolina Supreme Court

81 S.E. 484

97 S.C. 247

MIDLAND TIMBER CO. v. J. F. PRETTYMAN & SONS ET AL.

Supreme Court of South Carolina

April 23, 1914

Appeal from Common Pleas Circuit Court of Berkeley County; T. H Spain, Judge.

"To be officially reported."

Submission without action of controversy between the Midland Timber Company and J. F. Prettyman & Sons and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Watts J., dissenting.

Plaintiff, claiming to own the timber conveyed by the deed mentioned in the judgment, contracted to sell it to J. F. Prettyman & Sons, and offered to convey the timber, but the purchaser declined to accept the title thereto because of its doubt as to plaintiff's right to demand an extension of time in which to cut and remove the timber. The third paragraph in the timber deed provided that the timber cut by the grantee, its successors or assigns, for the purpose of opening, clearing, building, and constructing the railroads tramways, etc., thereinbefore provided for, should not affect the time granted for cutting and removing the timber conveyed under such deed. The decree below was as follows:

"The facts are succinctly set forth in the agreed case herein, and need not be repeated. The decision depends upon the construction of the timber deed, which is fully set forth in the agreed case. The crucial paragraph of the deed is as follows: 'Second. That the said second party, its successors or assigns, shall have, and the same is hereby granted to it and them, the period of ten years in which to cut and remove the said timber from the said land, and in case the timber is not cut and removed before the expiration of the said period, then that the said second party, its successors or assigns, shall have such additional time therefor as it or they may desire, but in the last-mentioned event, the said second party, its successors or assigns shall, during the extended period, pay interest on the original purchase price, year by year, in advance, at the rate of six per cent. per annum.'

"The defendants claim that the Atlantic Coast Lumber Company, the original grantee in the above-mentioned deed, and its assigns, are not entitled to any extension of time beyond the first period of 10 years, which has expired, in which to cut and remove the timber in question, because they did not commence to cut and remove the timber within the first period. To adopt this construction, we would have to read into the deed a provision that the option or privilege of extension therein granted was conditioned upon the commencement of the cutting and removal within the first period. Such commencement was not made a condition precedent by the terms of the deed itself, and there is nothing in the deed from which this might properly be implied. The Supreme Court of North Carolina, in the case of Norfolk Lumber Co. v. Smith, 150 N.C. 253, 63 S.E. 954, decided this point contrary to the contention of the defendants, on the ground that to hold otherwise would be against the clear intent of the parties. Further, it is conceded, as it must be, that if the cutting and removal had been commenced within the first period of 10 years, and any portion of the timber had been cut and removed, the option or privilege of extension would apply. This being so, it is entirely immaterial to the owner of the land whether the commencement of the cutting and removal takes place within the first period of 10 years or not.

In the case of Alderman & Sons Co. v. Wilson, 71 S.C. 64, 50 S.E. 643, the court had under consideration an instrument granting a right of way for a term of 25 years 'and for as many years after the expiration of the said twenty-five years as the said party of the second part, its successors or assigns, may wish to retain said right of way.' The court, through Mr. Justice Gary, now Chief Justice, held that the extension clause conferred a privilege or option, and did not affect the rights which had already been granted.

"The defendants further contend that if the grantee in the said timber deed, and its assigns, are entitled to any extension of time in which to cut and remove the timber, they are not entitled to such extension as they may desire, but that they are entitled to a reasonable time only. They rely, to some extent, upon the case of Flagler v. Atlantic Coast Lumber Corporation, 89 S.C. 328, 71 S.E. 849. In that case the timber company was given by the terms of the deed 10 years from the time it commenced to cut in which to cut and remove the timber, but the deed was absolutely silent as to when the commencement of the cutting and removal should take place. The court gathered from the language of the deed that the parties had in mind some time for the commencement of the cutting and removal, and that what this time was 'the agreement fails to show.' Hence the court held that the law would imply a reasonable time. The decision in this case does not touch the point involved in the case at bar. The court, however, adheres to the principle, well established in this state, that in the construction of a timber deed the intention of the parties controls, provided that intention can be gathered from the 'four corners of the instrument' itself. Where the instrument is express in its terms there is no room for implication. The language above quoted from the deed under consideration, it seems to me, is unambiguous and express in its terms. The contention of the defendants amounts to saying that, while the deed gives to the grantee, its successors and assigns, the right to such extension of time as it or they may desire, they are not entitled to such time, but only to a reasonable time to be fixed by the court. It is not the function of the court to make contracts, but to construe and enforce them. The option or privilege of extension can only be exercised by strict compliance with its terms, and by the payment annually, in advance, of the amount specified in the deed. It is not given gratuitously. This construction of the deed seems clear from the language used by the parties, which should prevail, unless the contract is invalid as a matter of law. At the time the deed was executed, the owner of the fee had the right to convey the timber without any specification as to time whatever. I see no reason why she could not sell the timber with the right to remove it within a definite time, and at the same time convey the privilege or option of an extension to be determined by the grantee, upon the condition that he should pay a specific sum annually in...