Bangert v. John L. Roper Lumber Co.

• Decision Date: 13 October 1915
• Docket Number: 170.
• Citation: 86 S.E. 516,169 N.C. 628
• Parties: BANGERT v. JOHN L. ROPER LUMBER CO.
• Court: North Carolina Supreme Court

86 S.E. 516

169 N.C. 628

BANGERT v. JOHN L. ROPER LUMBER CO.

No. 170.

Supreme Court of North Carolina

October 13, 1915

Appeal from Superior Court, Craven County; H. W. Whedbee, Judge.

Action by A. H. Bangert against the John L. Roper Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed.

This is a civil action to perpetually enjoin the cutting of timber upon certain land. The court rendered judgment enjoining the defendants from cutting and removing the timber and adjudged that certain funds in hands of trustees and deposited in bank, the proceeds of timber cut, be paid to plaintiff.

Clark C.J., and Hoke, J., dissenting.

Moore & Dunn, of Newbern, for appellant.

R. A Nunn, of Newbern, for appellee.

BROWN J.

The admitted facts are that defendant, as assignee of the Blades Lumber Company, acquired the right to cut and remove within ten years certain timber on plaintiff's land by virtue of a deed dated November 1, 1901, containing the following extension clause:

"And the party of the first part hereby contract and agree to extend the time within which the parties of the second part is to cut and remove said timber from said land, after the expiration of the term hereinbefore specified for the removal thereof, from year to year for a period of five years, said extension to be made yearly upon the request of the parties of the second part, the said parties of the second part to pay to the party of the first part upon each yearly extension of said time the sum of twenty-five dollars."

It is admitted that in January, 1911, shortly before the original time for cutting the timber expired and prior to the time when the five years' extension clause began to run, the defendant duly notified plaintiff that it would take the entire five years' extension given it under the contract, and at same time tendered the plaintiff $125, being $25 per annum for the five years. The defendant refused to accept the money but stated he would extend the time each year upon payment of $25 per annum. The defendant notified plaintiff before the close of each year that it would avail itself of the extension and paid the $25 to plaintiff; but, after notifying plaintiff in apt time before the close of last year, defendant did not tender the last $25 until four days after that year expired.

We have held that the provision as to extensions in a timber deed, when properly taken advantage of and made available, permits the grantee to cut and remove the timber for the period of time covered by the extension. Bateman v. Lumber Co., 154 N.C. 250, 70 S.E. 474, 34 L. R. A. (N. S.) 615. It is also held in Powers v. Lumber Co., 154 N.C. 405, 70 S.E. 629, that, where the instrument requires payment of interest on original purchase price "each year in advance" for an extension, tender of such interest not made within the time specified in the deed is insufficient. We adhere fully to what is decided in those cases, but there are two distinguishing features between them and the case before us. This contract does not necessarily require payment in advance, as in the Powers Case. Its language is:

"The said parties of the second part to pay to the party of the first part upon each yearly extension of said time the sum of $25."

The notice being given in apt time, and the money tendered only four days after, it may well be considered doubtful if equity will so construe the contract as to cause a forfeiture of defendant's entire interest. It is doubtful if it requires payment in advance as in the Powers...