Atlantic Coast Lumber Corp. v. Langston Lumber Co.

• Decision Date: 08 April 1924
• Docket Number: 11455.
• Citation: 122 S.E. 395,128 S.C. 7
• Parties: ATLANTIC COAST LUMBER CORPORATION v. LANGSTON LUMBER CO.
• Court: South Carolina Supreme Court

122 S.E. 395

128 S.C. 7

ATLANTIC COAST LUMBER CORPORATION v. LANGSTON LUMBER CO.

No. 11455.

Supreme Court of South Carolina

April 8, 1924

Appeal from Common Pleas Circuit Court of Florence County; E. C Dennis, Judge.

Action by the Atlantic Coast Lumber Corporation against the Langston Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The circuit decree follows:

This matter comes before me upon an agreed statement of fact and supporting documents. The agreed case appears to contain at least one inaccuracy where it says, in paragraph V that "Samuel Yarborough conveyed a one-half interest in the land unto his brother James Yarborough, reciting in the deed that it was for the purpose of partition." As a matter of fact, the deed describes 244 acres of the 300-acre tract of the Trisvan Eaddy land and recites: "Samuel Yarborough and James Yarborough acquired jointly a certain tract of land in the state and county aforesaid, containing 300 acres, more or less, by title from Trisvan Eaddy, bearing date January 27, 1883, also another tract of 33 3/4 acres, in the same state and county by title from B Wallace Jones, bearing date August 21st, 1891; both of which titles were made to Samuel Yarborough." In this situation the contents of the deed attached to the statement of facts as a part of it would supersede the inaccurate statements of counsel, and I shall so treat the matter herein.

There is nothing in the record to indicate that the 33 3/4-acre tract acquired from B. Wallace Jones, referred to in the above-quoted recitals, ever became involved in this transaction in any manner, and therefore that parcel of land will not be considered in this case.

For convenience I shall here restate the facts in chronological order, as follows:

On July 27, 1883, Trisvan Eaddy conveyed a 300-acre tract of land to Samuel Yarborough. On March 10, 1900, he conveyed the timber to the Atlantic Coast Lumber Company; before 1905 Atlantic Coast Lumber Company acquired all rights in the timber and easements from Atlantic Coast Lumber Corporation. On June 5 1905, Samuel Yarborough made a deed to James Yarborough for 244 acres of the Trisvan Eaddy land, containing the recitals above quoted and excepting the timber sold to the Atlantic Coast Lumber Company therefrom. On February 5, 1910, James Yarborough conveyed his interest in the 244 acres conveyed to him by Samuel Yarborough unto J. C. Lynch, who in 1923 conveyed the timber thereupon unto the Langston Lumber Company.

On December 1, 1914, for the valuable consideration, Samuel Yarborough executed an agreement to the plaintiff by which he made definite and certain the provisions of the timber deed as to the time within which for the plaintiff to enter and cut the timber and exercise the timber rights, privileges and easements conferred by the timber deed of March 10, 1900. This instrument extended the time for cutting until the 10th day of March, 1920. On June 13, 1919, Samuel Yarborough again extended the time for cutting until the 10th day of March, 1930, by duly executed instrument in writing based upon a substantial and valuable consideration.

When the clerk of the court for Williamsburg recorded the deed from Samuel to James Yarborough, on the ______ day of June 1905, the said clerk negligently failing to include the habendum clause in the record so that the deed as recorded contained no words of inheritances.

When the defendants entered under the deed from Lynch and began their operations on this land plaintiff commenced suit for injunction, claiming to be the owner of the timber, and to have until March 10, 1930, within which to cut and remove the same.

The circumstances attending the parties in their present difficulty flows immediately from the negligence of the clerk of the court in failing, correctly, to record the deed from Samuel to James Yarborough, as result of which some one must suffer, unless relieved by some other circumstances, and as to this primary matter I shall now address myself.

A conveyance of real estate not carrying the word "heirs" cannot convey the fee. Some lesser estate must be created. See Jones v. Kelley, 94 S.C. 349, 78 S.E. 17.

The record of the deed from Samuel to James Yarborough did not disclose the use of this all-important word, and the plaintiff acted upon the assumption that the record was correct and construed the deed as conveying a life estate, with timber excepted. In this construction I fully concur. But the question arises whether or not the plaintiff had the right to rely upon the record.

In the case of Bamberg v. Harrison, 89 S.C. 454, 71 S.E. 1086, Ann. Cas. 1913B, 68, Mr. Justice Woods, speaking for the court, uses these words: "The courts of highest resort are in direct conflict on the question, as will be seen by reference to the cases collated in notes in 96 Am. St. Rep. 398, and 4 A. & E. Annotated Cases, 561. But in this state the rule is firmly established that the purchaser of mortgaged property, in the absence of express notice, may safely rely on the record and is not bound by the neglect or errors of the recording officer. Building & L. Ass'n v. McCartha, 43 S.C. 72, 20 S.E. 807; Burriss v. Owen, 76 S.C. 481, 57 S.E. 542. A cogent reason for preferring this rule is that one who files a paper for record always has it in his power to examine the records and satisfy himself that his paper has been duly and accurately recorded, while it is impossible for a prospective purchaser or creditor to anticipate and inquire about and ascertain the innumerable forms which the negligence or mistakes of the officer may assume."

In the case of O'Neill v. Cooper River Lumber Co., 109 S.C. 35, 95 S.E. 124, we have a case very similar to the case at bar. There, as here, we have defective recording affecting the question of timber extension and there, in reliance upon the case, supra, the same conclusion was reached. Upon the...