Bank of Onslow v. Rowland Lumber Co.

• Decision Date: 18 May 1927
• Docket Number: 213.
• Citation: 138 S.E. 125,193 N.C. 757
• Parties: BANK OF ONSLOW v. ROWLAND LUMBER CO.
• Court: North Carolina Supreme Court

138 S.E. 125

193 N.C. 757

BANK OF ONSLOW v. ROWLAND LUMBER CO.

No. 213.

Supreme Court of North Carolina

May 18, 1927

Appeal from Superior Court, Onslow County; Devin, Judge.

Action by the Bank of Onslow against the Rowland Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed.

Legal title to mortgaged property passes to mortgagee for purpose of security only.

Mortgagor is true owner of mortgaged property as to all persons except mortgagee.

Action to recover damages for trespass by cutting and removing timber from lands owned by plaintiff.

It was agreed at the trial that on February 1, 1925, defendant entered upon said lands and cut and removed therefrom timber of the value of $1,200.

The court, having found the facts from the evidence, by consent and being of the opinion upon said facts that defendant had no right to enter upon said lands, and to cut and remove said timber, on February 1, 1925, rendered judgment that plaintiff recover of defendant the sum of $1,200, with interest from February 1 1925.

From this judgment, defendant appealed to the Supreme Court; its principal assignment of error being based upon its exception to the judgment.

L. I Moore, of Newbern, for appellant.

Varser, Lawrence, Proctor & McIntyre, of Lumberton, for appellee.

CONNOR J.

The material facts upon which the determinative question involved in this appeal is presented for decision are as follows:

(1) On March 9, 1906, William Simmons and his wife, by deed duly recorded on April 20, 1906, conveyed to Blades Lumber Company, the timber on lands described in said deed.

With respect to the time within which said timber may be cut and removed from said land, the deed provides, first, that the grantee, its successors, or assigns shall have the full term of 10 years from the date of the deed within which to cut and remove said timber, and, second, that at the expiration of said term of 10 years said time may be extended from year to year, for an additional term of 10 years, upon the request of said grantee, its successors, or assigns, and upon payment to the grantor, for each yearly extension of a sum equal to 6 per cent. of the purchase price paid for said timber.

(2) The defendant, Rowland Lumber Company, by mesne conveyances, has succeeded to the rights, privileges, and property conveyed by said deed to Blades Lumber Company, and as its successor is now the owner thereof.

(3) Upon the expiration of the original term of 10 years within which said timber might be cut and removed, the time for such cutting and removal was extended in accordance with the provisions of said deed to March 9, 1920.

(4) Before the expiration of such extended time, to wit, on February 2, 1920, William Simmons and his wife, for the purpose of securing the payment of their note to plaintiff, Bank of Onslow, executed and delivered to said Bank of Onslow a mortgage deed, which was duly recorded on February 16, 1920, by which they conveyed to said bank the lands on which the timber theretofore conveyed to Blades Lumber Company was standing and growing. Other lands were also conveyed by said mortgage deed.

(5) Thereafter, to wit, on February 27, 1920, the defendant, Rowland Lumber Company, or its predecessors in title, for the purpose of obtaining an extension of time within which to cut and remove said timber, from March 9, 1920, to March 9, 1923, paid to William Simmons, the mortgagor of plaintiff, Bank of Onslow, the sum of money required by the provisions of the deed from said William Simmons and wife to Blades Lumber Company, for such extension, and took from said Simmons his receipt for said sum of money, which was duly recorded.

(6) Default was made by William Simmons in the payment of his note secured in the mortgage to plaintiff, at its maturity, to wit, November 1, 1920; thereafter an action was begun by plaintiff against said Simmons and wife for the foreclosure of said mortgage. All the lands conveyed by said mortgage were sold under a decree rendered in said action. The lands upon which the timber in controversy in this action was located were purchased by plaintiff and conveyed to it by the commissioner's deed, dated December 28, 1922, and recorded on January 25, 1923. After applying the proceeds of the sale of all the lands conveyed by said mortgage to the indebtedness therein secured, there is a balance due on said indebtedness of more than $1,500, which remains unpaid.

(7) On February 27, 1923, after plaintiff had become the owner in fee of the land on which said timber is located, defendant tendered to plaintiff the sum of money required for an extension of the time within which to cut and remove the same from March 9, 1923, to March 9, 1926. Plaintiff refused to accept said money. Defendant thereafter, on February 1, 1925, entered upon said land and cut and removed timber therefrom of the value of $1,200.

(8) From the date of the execution of the mortgage deed by William Simmons and wife to plaintiff until the conveyance of the lands described in the complaint to plaintiff by the commissioner, under decree in the action to foreclose said mortgage, no one was in the actual possession of said land. The only possession thereof was the constructive possession of the owner of the legal title to said lands. Since said conveyance, plaintiff has been in the actual possession of said lands.

Upon the foregoing facts ...