Alexander v. Morris & Co.

• Decision Date: 23 February 1925
• Docket Number: (No. 187.)
• Citation: 270 S.W. 88
• Parties: ALEXANDER et al. v. MORRIS & CO.
• Court: Arkansas Supreme Court

270 S.W. 88

ALEXANDER et al. v. MORRIS & CO.

(No. 187.)

Supreme Court of Arkansas.

February 23, 1925.

Rehearing Denied with Modification April 6, 1925.

Appeal from Greene Chancery Court; J. M. Futrell, Chancellor.

Suit by Morris & Co. against Jas. W. Alexander and others, who interposed a cross-complaint. Decree for plaintiff, and defendants appeal. Reversed and remanded, with directions.

D. G. Beauchamp, of Paragould, for appellants.

M. P. Huddleston, of Paragould, for appellee.

McCULLOCH, C. J.

This litigation involves the construction of a deed of conveyance executed on January 2, 1901, by appellants to the National Box Company, appellee's grantor. It is the contention of appellee that, under a proper construction of the deed, it operated as a conveyance of the lands therein described in fee simple to appellee's grantor, National Box Company, and this action was instituted in the chancery court of Greene county by appellee to have its title to the land confirmed. Appellants contend, on the other hand, that a proper construction of the deed is that it conveyed only the right to remove the timber on the land (except a small tract conveyed as a mill site, which it is conceded passed to the grantee in fee simple) and that such rights have terminated by the removal of the timber. Appellants, in a cross-complaint, ask that their title be quieted. The deed, omitting formal parts, reads as follows:

"Know all men by these presents that we, H. A. Amberg, L. P. Alexander, Scott Alexander, J. W. Alexander, R. L. Alexander, and W. J. Slayden (the latter being a widower), composing the firm of Alexander Amberg & Co., and Emma Amberg, wife of the said H. C. Amberg, Cretia Alexander, wife of the said L. P. Alexander, Maud Alexander, wife of the said Scott Alexander, Kate W. Alexander, wife of the said J. W. Alexander, and Mary I. Alexander, wife of the said R. L. Alexander, in consideration of the sum of eight thousand ($8,000) dollars to us cash in hand paid by the National Box Company, a corporation of the state of Illinois, with its situs at Chicago, in the state of Illinois, the receipt of which is duly acknowledged, do hereby grant, bargain, sell and convey unto the said National Box Company and unto its successors and assigns the following lands, together with all the riparian rights incident and appurtenant thereto, situate in the county of Greene, state of Arkansas, to wit: [Then follows description of tracts of land containing in the aggregate 4,383.22 acres], except the five following described meandered and measured tracts, namely: [Here follows description.] The above described five (5) tracts so excepted containing in the aggregate 2,896.79 acres.

"Also excepting ten acres at the county bridge on the east side of Bagwell's Lake, at the northwest corner of section 16, township 17 north, range 7 east, and 70 acres in the southwest quarter of section ten, township seventeen north, range 7 east, belonging to Livesay.

"Also excepting two acres of land in a square in the southeast corner of the northeast quarter of the southeast quarter of the section 21, township seventeen north, range seven (7) east, containing schoolhouse and grounds, reserving to ourselves the right of ingress and egress through and over said lands, perpetually, and also reserving the sassafras and mulberry, and sufficient cypress for necessary improvements to the lands above, to consist of bridges and house building, also the privilege of grazing, and fencing for that purpose any parts of said lands at any time we may so desire, and hereby granting to said grantee the right to them over such parts of our excepted tracts as may be convenient in pursuance of its business, provided the same shall be done in a reasonable manner so as to not substantially interfere with and injure said excepted tracts and our enjoyment thereof.

"It is the intention of this instrument to convey the grantee all the land unfit for cultivation on Bark Camp, Panther, and Boland's Islands owned by grantors, the inner boundaries of which have been meandered, measured and marked by a blaze with notch above on trees along the line, together with sufficient dry land for mill site at east side of Bagwell's Lake, at crossing of P. S. E. R. R. and on the north side thereof, which said dry land is also without the meander line above given, and is conveyed subject to existing timber contracts.

"To have and to hold the same unto the said National Box Company, and its successors and assigns in fee simple forever.

"And the said grantee, its successors and assigns, hereby covenant and agree to use said land, and the riparian rights appurtenant thereto, so hereinabove conveyed, for the purpose of cutting and removing the timber therefrom and conveying the same to and from the saw mill of said grantee (to be located and erected by it upon a portion of said land hereinabove conveyed, containing about ten acres, and situate in the southeast quarter of section (29) twenty-nine aforesaid, at the east side of Bagwell's Lake, on the north side of the crossing of the Paragould southeastern Railroad) and for said mill site and grounds and for such other purposes as may be convenient and incidental to or beneficial for the purpose of said grantees' business; and said grantee, its successors and assigns, further covenant and agree to pay the taxes hereafter...