Belt v. Matson

• Decision Date: 11 January 1927
• Citation: 252 P. 80,120 Or. 313
• Parties: BELT ET UX. v. MATSON ET AL.
• Court: Oregon Supreme Court

252 P. 80

120 Or. 313

BELT ET UX. v. MATSON ET AL.

Supreme Court of Oregon

January 11, 1927

Department 2.

Appeal from Circuit Court, Yamhill County; H. H. Belt, Judge.

Suit by William Belt and wife against Ole Matson and another. From a decree for plaintiffs, defendants appeal. Reversed, and decree entered dismissing suit, with prejudice.

This suit was instituted to enjoin the defendants from sawing timber from land owned by the plaintiffs. On the 20th day of December, 1917, W. G. Moore and Mae J. Moore, husband and wife, were the owners of said timber and the land upon which it was growing. On that date they entered into a contract with the defendant L. N. Tompkins for the sale of said timber to said Tompkins. Said contract (omitting the description of real property) reads as follows:

"This article of agreement made and entered into on this 20th day of December, A. D. 1917, by and between W. J. Moore and Mae J. Moore, husband and wife, of the county of Yamhill, state of Oregon, parties of the first part, and L. N. Tompkins of the county of Washington, state of Oregon, party of the second part, witnesseth:

"That whereas the parties of the first part are the owners of all the following described real property lying, being, and situate in the county of Yamhill, state of Oregon, and more particularly described as follows, to wit [[description of real property omitted]:

"Whereas the parties of the first part are desirous of selling, and the party of the second part is desirous of purchasing all the standing and down timber of every kind and nature standing, lying and being upon the above described premises,

"Now therefore, this agreement witnesseth: That the parties of the first part, for and in consideration of the promises and agreements of the party of the second part hereinafter contained, and the sums of money to be paid by him to the parties of the first part as hereinafter provided, hereby agree to sell, and the party of the second part hereby agrees to purchase, all the standing and down timber of every kind, nature and description, lying, standing and being upon the above described premises.

"And the party of the second part, for and in consideration of the sale of said timber covenants and agrees to and with the parties of the first part that he will pay to them the sum of $6,000.00 to be paid in the manner following, to wit:

"$1,000.00 in cash, the receipt whereof is hereby acknowledged, and the sum of $1,000.00 on or before December 20th, of each and every succeeding year for a period of five years, said sums to be without interest.

"And it is expressly understood and agreed by and between the parties to this agreement that the party of the second part, his heirs, executors, administrators, assigns, agents and employees are to have five years from this date within which to cut and remove said timber, and that if said timber is not all removed within five years from date, then said party of the second part or his assigns may have three years additional within which to remove the same upon paying each year the taxes on the timber left upon said premises.

"And it is further expressly understood and agreed by and between the parties hereto that the party of the second part, his heirs, executors, administrators, assigns, agents and employees, are to have the privilege of building and constructing a saw mill or saw mills any place or places upon any of the property above described which they shall desire, together with the necessary buildings for the convenient logging of said timber and manufacturing the same into lumber, and of hauling the same away, and shall have the right and privilege at any time they so desire to remove said buildings, mill and fixtures from said premises, and shall have the right to build and construct such logging or other roads as shall be necessary and convenient to log and remove said timber from said premises.

"In witness whereof, we have hereunto set our hands and seals in duplicate on this 20th day of December, A. D. 1917.

"[Signed] W. G. Moore. [Seal.]

"Mary J. Moore. [Seal.]

"L N. Tompkins. [Seal.]"

Said contract was duly witnessed, acknowledged, and certified entitling it to recordation, but it was never recorded. The defendant L. N. Tompkins paid to his grantors $1,000 on the date of the contract and later the balance of the purchase price of said timber. Thereafter and on the 23d day of February, 1918, the plaintiff purchased said premises from the said W. G. Moore and Mae J. Moore. The premises were conveyed to plaintiffs by warranty deed containing this reservation:

"All fir timber suitable for lumber on the above place is hereby reserved from said place, the said Moores having five years in which to remove the same after which time what is left is to belong and go with the said place."

The deed to plaintiffs was recorded April 26, 1918.

Among others the court made the following findings of fact:

"VII. That the said defendants, in cutting down and removing the said timber upon the said real premises, or any thereof are acting wholly without authority or right in the premises, and without warrant of law, and wholly against the will and protest of the plaintiffs."

"X. That at the time of the execution of the contract herein above set forth, the defendant L. N. Tompkins paid to the said W. G. Moore and Mary J. Moore, his wife, the sum of $1,000.00 in cash and on the 3d day of March, 1919, made final and complete settlement with the said W. G. Moore on the said contract and paid to the said W. G. Moore the balance agreed by them to be then due upon the said contract."

"XVII. That at the time of the purchase of the said real premises by the plaintiffs as above set forth, the said contract between the said W. G. Moore and wife and the said defendant L. N. Tompkins was not of record, and the said plaintiffs had no notice whatsoever, neither actual nor constructive, concerning the terms thereof, nor of any other contract or adverse interest in said real premises, excepting only plaintiffs had been informed by the said W. G. Moore prior to the purchase of said premises by plaintiffs that the fir timber thereon suitable for lumber had been sold and that the purchaser thereof had five years within which to remove the same, at the end of which time, if not removed, the same was to go with the said real premises so purchased by plaintiffs, and that the warranty deed to the said plaintiffs should be made to conform to such statement and information so given plaintiffs by the said W. G. Moore; that the said plaintiffs had no notice whatsoever, neither actual nor constructive, of any terms or provisions in any contract relating to the said timber upon said real premises, prior to the time plaintiffs purchased said real premises, inconsistent with, contrary or adverse to the reservation contained in plaintiffs' said warranty deed, and said plaintiffs, prior to the purchase of said real premises by them, were wholly without the knowledge of any facts or conditions whatsoever which would or should put the said plaintiffs upon an inquiry which would or might disclose the provision of said contract held by defendant L. N. Tompkins inconsistent with the reservation expressly set forth in plaintiffs' said warranty deed, and plaintiffs were wholly without notice or knowledge of any kind whatsoever, which made it their duty to conduct such an investigation as might disclose the full and complete terms of said contract held by the said defendant L. N. Tompkins, and the said plaintiffs in this respect acted in a reasonable and ordinary manner, and performed their full duty as to inquiry and investigation, and the said plaintiffs were and are actual and bona fide purchasers of the said real premises in their said warranty deed particularly described, and of the whole thereof."

The court adopted as its conclusions of law that the plaintiffs were entitled to a decree as prayed for in the complaint, and a decree was entered accordingly.

Thos. H. Tongue, Jr., of Hillsboro, for appellants.

Walter L. Tooze, Jr., and Eugene Marsh, both of McMinnville (Vinton & Tooze, of McMinnville, on the briefs), for respondents.

COSHOW, J. (after stating the facts as above).

The plaintiffs consume much time and a great deal of space contending that the contract between Moore and defendant Tompkins is a mere license revocable at the pleasure of said Moore and that the sale of the fee to plaintiffs constituted a revocation of that license. It will be noticed that by the contract between Moore and defendant Tompkins the former agreed to sell and the latter agreed to buy all the timber on the land described and to pay therefor the sum of $6,000; that defendant Tompkins paid to Moore $1,000 at the time of entering into the contract and later paid the remainder according to the terms of the contract. This agreement, therefore, is vastly more than a bare license. Shaw v. Proffitt, 57 Or. 192, 214, 217, 109 P. 584, 110 P. 1092, Ann. Cas. 1913A, 63. In the valuable note to Zirkle v. Allison, 126 Va. 701, 101 S.E. 869, 15 A. L. R. 38, 70, is this language:

"Where the contract specifies a time for the removal of the timber, the great majority of courts hold that the rights of the purchaser terminate upon his failure to remove within the time stated, and reinvest in the owner of the land. * * * The result in these cases is not dependent upon the character of the instrument evidencing the sale. It has been well stated that 'no distinction seems to be made in this respect between rights conferred by deed and those conferred by contracts which have not the form nor all the requisites of a deed.' "

Tompkins purchased the timber from Moore on the 20th day of December 1917. At that time Moore...