Baxter v. Mattox

• Decision Date: 23 December 1898
• Citation: 32 S.E. 94,106 Ga. 344
• Parties: BAXTER et al. v. MATTOX. MATTOX v. BAXTER et al.
• Court: Georgia Supreme Court

32 S.E. 94

106 Ga. 344

BAXTER et al. v. MATTOX.

MATTOX v. BAXTER et al.

Supreme Court of Georgia

December 23, 1898

Syllabus by the Court.

1. Where the judge of the superior court has granted a temporary injunction after a hearing upon the merits of the issues made by the pleadings in a case, this court will not reverse his judgment solely on the ground of a technical defect in plaintiff's petition, when it does not appear from the record that such defect was insisted on in the court below as a reason why the injunction should not be granted.

2. Where a grantor conveys by deed "all of the timber wood, logs, and growing trees suitable for sawmill purposes and being manufactured into lumber, now upon, or that may here after grow upon, all or any of the following lots or parcels of land [describing the same by giving the number of each, and district where located]," which words in the conveyance are followed by a clause that "this lease to expire ten years from the time said [grantee] begins cutting said timber" from the lots of land mentioned, the effect of the instrument is not to convey to the grantee a perpetual right to use timber on the land as long as any may be growing thereon, but to limit the right of such use to a period of ten years, to be computed from the time the grantee begins cutting the timber.

3. The period of limitation in such a conveyance should be computed as to the entire lands embraced in the deed from the time the grantee enters upon any one of the lots, there being nothing in the conveyance to indicate an intention by the parties that the instrument should be treated as a separate lease to each lot, and to limit the time of occupancy of any particular lot to a period of ten years from the date the grantee begins cutting the timber on such lot.

4. The evidence showing a clear title in the plaintiffs to the premises in dispute as to which the injunction was granted and further showing that the defendants intended to cut timber from the land for sawmill or cross-tie purposes after the expiration of the lease under which they held without any right or legal interest in the property, --the court did not err in granting the temporary injunction.

5. There was no error in that portion of the judgment of the court below, complained of in the cross bill of exceptions, which refused to enjoin the defendants from cutting and using timber suitable for sawmill purposes on certain of the lands mentioned in the plaintiff's petition; it appearing from the testimony on the hearing that the defendants had acquired all rights to such timber which the original owner of the land had conveyed by deed that specified a sale to the grantee, his heirs and assigns, of all the timber, growing trees. etc., suitable for sawmill purposes "now upon or that may hereafter grow upon all or any of the said lots of land;" the said deed containing no limitation whatever as to the time of enjoyment of the privileges therein conveyed; and it not appearing a reasonable time for their exercise had expired.

Error from superior court, Clinch county; J. L. Sweat, Judge.

Action by W. H. Mattox against G. S. Baxter & Co. and others. A judgment was rendered, and defendants bring error, and plaintiff files a cross bill of exceptions. Affirmed.

Spencer R. Atkinson, Toomer & Reynolds, and Leon A. Wilson, for plaintiffs in error.

R. G. Dickerson and Hitch & Myers, for defendant in error.

LEWIS J.

1. It is insisted by counsel for plaintiffs in error that the plaintiff below, in his application for injunction, did not proceed according to the provisions of section 4927 of the Civil Code, and that, no insolvency of the defendants and no irreparable damages being shown, the injunction should have been denied. It was manifestly the intention on the part of the petitioner to bring his case within the provisions of the section above cited, which declares, "In all applications to enjoin the cutting of timber for sawmill purposes," etc., "it shall not be necessary to aver or prove insolvency, or that the damages will be irreparable." It is true there is not attached to the petition an abstract of title, as required by that section. The petition, however, alleges that both plaintiff and defendants claim under a common grantor,--the defendants under a lease which had expired, --and that, therefore, it was unnecessary to attach an abstract of title. The answer denied the title of the plaintiff, and alleged a perfect title in the defendants. It seems, upon the issue thus made the case was heard before the judge. It nowhere appears in the record that any objection was made to the plaintiff's petition for want of sufficiency, or that the respondents ever urged that the injunction should not be granted on account of this defect in the petition. It is true, the court could not have passed upon a formal demurrer to the petition in vacation, but the grounds of such demurrer could have been urged in the answer as a reason why the application should have been refused. But had the question been presented to the court, and the contention of plaintiffs in error been sustained, as it doubtless would have been, the defect complained of could readily have been cured by amendment. It is fair, from the record before us, to treat this technical defect as having been waived by the plaintiffs in error on the hearing below. It should at least have appeared that such a question was presented to the trial judge, before we would be authorized to reverse his judgment simply on account of an amendable defect in the plaintiff's pleadings, especially in view of the fact that the plaintiffs presented and introduced in evidence a complete chain of title to the land; and no point was made on trial below that he failed to attach an abstract of the papers before the judge to his petition.

2. It appears from the record that all the lands involved in this litigation originally belonged to H. A. and H. P. Mattox. On September 27, 1881, they conveyed to one Reppard all the timber, logs, and growing trees suitable for sawmill purposes, and being manufactured into lumber, upon certain lots of land; describing the same by number, district and county. In this deed there was no limitation as to the time in which the grantee or his heirs and assigns should have a right to use the timber designated. On the same day a conveyance was made by H. A. and H. P. Mattox to Reppard of timber on certain other lots of land, and directly following this granting clause was this sentence: "This lease to expire ten years from the time said Reppard begins cutting said timber." On January 23, 1883, there was a like conveyance between the same parties of timber on other lots of land, described in like manner; and following this granting clause was the statement: "And it is hereby covenanted, understood, and agreed by and between the parties to this indenture that the party of the second part, his heirs and assigns, are limited to the period of ten years' time in which to cut and remove the timber, logs and trees suitable for sawmill purposes, or being manufactured into lumber, upon the lots aforesaid, from the time they commence to cut and remove the same therefrom." The injunction was refused as to the property described in the deed first mentioned above, but was granted as to that described in the last two deeds, and to this granting of the injunction the plaintiffs in error except. It is insisted by counsel for plaintiffs in error that the clauses imposing limitations upon the right of the defendant to cut timber in the last two deeds referred to are repugnant to the operative words of the grant, and that, therefore, the former words should prevail, and the limitation clause should be treated as of no effect at all. Section 3607 of the Civil Code provides, "If two clauses in a deed be utterly inconsistent, the former must prevail, but the intention of the parties, from the whole instrument, should, if possible, be ascertained and carried into effect." Applying this cardinal rule of intention of the parties as indicated by the terms used in these instruments, we do not think there is any difficulty in arriving at their proper construction. The limitation clause was manifestly intended as an addendum or proviso to the granting clause that had just preceded it. There is no utter and...