Broderick v. Mcrae Box Company

• Decision Date: 31 March 1919
• Docket Number: 161
• Citation: 210 S.W. 935,138 Ark. 215
• Parties: BRODERICK v. MCRAE BOX COMPANY
• Court: Arkansas Supreme Court

210 S.W. 935

138 Ark. 215

BRODERICK v. MCRAE BOX COMPANY

No. 161

Supreme Court of Arkansas

March 31, 1919

Appeal from White Chancery Court; J. E. Martineau, Chancellor reversed in part; affirmed in part.

STATEMENT OF FACTS.

Thos E. Broderick brought this suit in equity against the McRae Box Company, Jim K. Hale, E. T. Hall and S. M. Hall, to restrain them from cutting and removing timber from the 80 acres of land described in the complaint and, also, to account to him for the value of the timber already cut.

E. T and S. M. Hall filed a separate answer to the complaint. They stated that they had sold the land described in the plaintiff's complaint to the plaintiff and that the gum timber on the land was excepted by them from the sale; that the plaintiff was informed by them at the time he purchased the land that they had already sold the gum timber.

The McRae Box Company filed an answer which contained a general denial of the allegations of the complaint. The question of the jurisdiction of the chancery court to try the cause was raised and all the parties to the suit filed a written stipulation in which they agreed that the cause might be heard and determined in the chancery court.

Thos E. Broderick testified for himself. According to his testimony, Dr. Hall told him that he had sold the hickory timber on the land, but did not tell him that he had sold the gum timber on it. There was nothing said by Dr. Hall, or anyone for him, about excepting the gum timber from the sale. A warranty deed was executed by Dr. E. T. Hall and by his wife, S. M. Hall, to Thos. E. Broderick for the land described in the complaint. The deed contained a general covenant of warranty and did not contain any exceptions or reservations of the timber on the land. Broderick went into possession of the land under his deed and afterwards a quantity of gum timber was cut and removed from the land by Mr. Hale for the McRae Box Company. The plaintiff also introduced in evidence the warranty deed from Hall and wife to him for the land in question.

Tom Hall, a son of the defendants, E. T. and S. M. Hall testified for the defendants. According to his testimony he showed the plaintiff the land and told him that the timber on it had been sold and that the purchaser had until some time in December, 1918, to cut and remove it from the land.

According to the testimony of E. T. Hall, one of the defendants, he told the plaintiff that the timber on the land had been sold to R. B. Hale. Hall first sold the hickory timber on the land to Hale by a written contract and in it, it was provided that Hale should have until December 1, 1918, to cut and remove the timber. Subsequently he sold to Hale all the other timber on the land by a contract in writing, and provided in it that Hale should have until the 30th day of December, 1918, to cut and remove the timber. Both of these timber contracts were executed in 1917. The deed from Hall to Broderick was executed in March, 1918. Mrs. S. M. Hall was present when Dr. Hall and Mr. Broderick made the contract for the sale of the land. She stated that her husband told Mr. Broderick that the timber on the land had already been sold and that the purchaser had a certain time in the future within which to cut and remove the timber.

In rebuttal G. W. Treece testified that he bought from Dr. Hall the land south of the land in question and that nothing was said to him about any timber on the land having been sold to Hale or anyone else. The land purchased by Treece from Dr. Hall was a part of the land described in the timber contract from Hall to Hale.

Broderick again testified in rebuttal and denied that Dr. Hall had said anything to him whatever about the timber on the land having been sold by him previously to the sale of the land.

The chancellor found the issues in favor of the defendants and dismissed the complaint for want of equity. The plaintiff has appealed.

Decree reversed and cause remanded.

John D. DeBois, for appellees.

1. The positive testimony of E. T. Hall shows that Broderick was advised of the two timber sales made by him to R. B. Hale at the time he purchased and that he purchased subject to the two timber deeds or contracts held by R. B. Hale. Being advised as to the sale of the timber and having stated that he understood it, he is estopped to afterwards claim that his deed fails to recite such reservation. 37 Ark. 47-53; 71 Id. 31-35.

2. The two timber deeds show a sale of the hickory timber to R. B. Hale and that he had until December 1, 1918, to take the timber from the land. The other or second contract at Beebe, dated September 27, 1917, was a timber sale of all the other timber to R. B. Hale and that the purchaser had until December 30, 1918, to cut and remove it. The written contracts were deeds and the courts of equity will enforce them. Broderick knew of the deeds or contracts at the time he bought and cannot complain.

3. The statute of frauds must be pleaded to avail. 71 Ark. 302; 96 Id. 505. The facts warranted the chancellor in dismissing the cause of action.

John E. Miller and C. E. Yingling, for appellant.

1. The defendants plead a parol reservation of standing and growing timber. Even if the contracts made with Hale are bona fide and were outstanding at the time, still they did not vest the title to the timber in him, and he or his vendee would be liable for any timber cut and removed after the execution and delivery of the deed. 109 Ark. 230. No parol condition, reservation or defeasance can be proved where the deed is absolute on its face. 109 Ark. 230; 29 Id. 489; 41 Id. 293; 8 R. C. L. 1093; 3 Jones on Ev. 367; 10 Ark. 13; 123 Id. 18; 110 Id. 63; note Ann. Cases 1915 D, 865; 74 Mich. 183; 16 Am. St. 621.

2. No mistake in the execution of the deed was placed, nor does the evidence show any mistake in the deed. The effect of the decree below is to engraft upon the deed a parol reservation of the gum timber. This was error. 2 Pom. Eq. Jur. (4 ed.), 1756-7; 75 Ark. 72; 102 Id. 334; 132 Id. 227.

OPINION

HART, J., (after stating the facts).

We think that the court erred in dismissing the complaint of the plaintiff so far as the defendants, E. T. and S. M. Hall, are concerned. It is settled in this State that growing trees or standing timber are part of the realty, and that consequently a contract for the sale thereof is within the statute of frauds and must be evidenced by a deed or other instrument in writing. Graysonia-Nashville Lumber Co. v. Saline Development Co., 118 Ark. 192 176 S.W. 129; King-Ryder Lumber Co....