Brown v. Surry Lumber Co

• Citation: 75 S.E. 84,113 Va. 503
• Parties: BROWN et al. v. SURRY LUMBER CO.
• Decision Date: 13 June 1912
• Court: Virginia Supreme Court

75 S.E. 84

(113 Va. 503)

BROWN et al.

v.SURRY LUMBER CO.

Supreme Court of Appeals of Virginia.

June 13, 1912.

1. Logs and Logging (§ 3^*)—Sales of Standing Timber—Failure to Remove.

Where it was claimed that it was intended by the parties to a contract for the sale of standing timber that the purchaser should commence cutting within a reasonable time, and that he had forfeited his rights by delay, a remark by the seller in a casual conversation with the purchaser that he thought it was time the purchaser was cutting the timber, if he intended to cut it, was not a sufficient demand that the purchaser proceed to justify the court in declaring a forfeiture, especially where for seven years thereafter the seller made no further mention of the matter.

[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]

2. Logs and Logging (§ 3*)—Sales of Standing Timber—Time for Removal.

A deed conveying all the standing timber on a tract of land of a specified size at the time of cutting, together with a right of way across the land for the purpose of removing the timber, and providing that the purchaser should have five years in which to cut and remove the timber from the time they commenced manufacturing it into wood or lumber, but that they should not be limited as to the time within which they should commence the cutting or removal, did not give the purchaser a perpetual right to enter on the land and cut the timber, but merely a right to do so within a reasonable time.

[Ed. Note.—For other cases, see Logs and Logging, Cent Dig. §§ 6-12; Dec. Dig. § 3.*]

3. Contracts (§ 324*)—Validity.

Contracts which contravene no rule of law must be enforced by the courts.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 1549-1557; Dec. Dig. § 324.*]

4. Logs and Logging (§ 3*)—Sales of Standing Timber—Time for Removal.

Where a deed conveying standing timber provided that the purchaser should have 5 years to cut and remove the timber after commencing cutting, but should not be limited as to the time within which to commence, and the purchaser without protest from the seller delayed commencing for nearly 14 years, the seller is not prejudiced by a decree construing the deed as providing for a reasonable time only within which to commence cutting, and holding that one year after the termination of the action would be such reasonable time.

[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]

Appeal from Circuit Court, Sussex County.

Action by R. A. Brown and another against the Surry Lumber Company. From the decree, plaintiffs appeal. Affirmed.

Geo. Mason and Chas. E. Plummer, for appellants.

Wm. B. Mcllwaine, W. B. Cocke, and Davis & Davis, for appellee.

KEITH, P. R. A. Brown and his sister, Mrs. Parker, filed their bill in the circuit court of Sussex county, from which it appears that they were seised in fee simple of two tracts of land in the county of Sussex, containing 264 1/2 acres; that by deed dated the 21st of March, 1896, filed as an exhibit with the bill, they sold to the Surry Lumber Company, a corporation under the laws of the state of Virginia, all the timber on the said tracts measuring over 12 inches in diameter at the stump at the time of cutting the same, together with a right of way across the land for the purpose of removing the timber cut from the same and that cut from any other tract of land by said company, and for the purpose of operating a railway, in consideration of $250 paid in cash, and $300 to be paid on April 1, 1897. In said deed it was "covenanted and agreed by and between the parties hereto that the said Surry Lumber Company shall have five years in which to cut and remove said timber from the time they commence to manufacture said timber into wood or lumber, but that they shall not be limited as to the time in which they shall commence to cut or remove the same. And it is also further covenanted and agreed by and between the parties hereto that the said Surry Lumber Company shall not commence to cut or remove any of the timber conveyed by this instru-ment of writing until the purchase price in full for the same shall have been paid."

The deferred payments seem to have been promptly met. The bill charges that at the time the deed was entered into it was contemplated by the parties, and so stated on the part of the Surry Lumber Company, that the timber should be cut without unnecessary delay, and that five years would be ample time for cutting and manufacturing all of it, and the plaintiffs in the court below contend that the proper construction of the deed is, and the intent of all the parties thereto was, that the said company was bound to commence the cutting of timber within a reasonable time after the last payment of the purchase money became due and was paid, and to complete the cutting and removal thereof within five years after so commencing, and that it had, and would have, no right or title to any of the timber not so cut and removed within that period, and that Brown, one of the plaintiffs, several times so notified the company through its agent.

The answer denies that there was at the time of the execution of the deed any purpose or intent, expressed or implied, not contained within the deed itself, and further denies that it ever received notice from the plaintiffs of their construction of the contract as stated in the bill. The answer admits that the defendant did not begin to cut and remove the timber until the latter part of December, 1909.

There is nothing in the proof which affords any aid in the proper construct ion of the deed in question, nor does the proof sustain the averment in the bill that the company was notified that it was bound to commence to cut the timber conveyed to it within a reasonable time after the last payment of the purchase money became due and was paid. The only evidence upon that subject is contained in the depositions of Edward Rogers and the plaintiff Robert A. Brown.

Rogers was asked this question: "Do you remember that some six or seven years ago Mr. Robert A. Brown, one of the grantors, who was then deputy treasurer of Sussex county, called on you at Dendron, perhaps with regard to taxes, and took dinner with you, and after dinner, down about the company's office, mentioned this deed to you at this time, and he told you he thought the company had had time enough to take the timber off, and that he wanted it done? A. No, sir; I have no recollection of such a conversation, and am sure that Mr. Brown never made any demand on us in that way to cut and remove the timber. If he mentioned the subject, it made no impression on me, and I do not remember it."

Speaking on the subject, Brown, in answer to substantially the same question, said: "I think it was about seven years ago. I was deputy treasurer for Mr. Tarratt. I went down there at Dendron one day in regard to taxes. Mr. Rogers was always very nice to me in that respect, and we were walking out there by the office, and I said to him: 'Mr. Rogers, I think that it is getting time you were cutting my timber, if you want it. I do not consider that you have any more than an option on it.' And I said: 'I think it is getting time you were buying it or cutting it.' Q. State whether or not...