Bunch v. Elizabeth City Lumber Co.

• Decision Date: 18 December 1903
• Parties: BUNCH v. ELIZABETH CITY LUMBER CO.
• Court: North Carolina Supreme Court

46 S.E. 24

134 N.C. 116

BUNCH v. ELIZABETH CITY LUMBER CO.

Supreme Court of North Carolina

December 18, 1903

On petition for rehearing. Dismissed.

For former opinion, see 42 S.E. 1040, 131 N.C. 830. See, also Monds v. Lumber Co., 42 S.E. 334, 131 N.C. 20.

In trespass for cutting timber, the complaint was drawn on the theory that the contract for cutting the same had expired and defendant's entry was therefore tortious. The complaint also asked that plaintiff be declared the owner of the timber cut and converted, and that the contract be declared of no effect, because of its expiration. There was an allegation that defendant's assertion of a right to the timber was a cloud on plaintiff's title, but there was no prayer of the complaint in accordance therewith. The only issue submitted to the jury related to plaintiff's damages and defendant's counterclaim, and the judgment of the court was for the damages assessed, and nothing else. Held, that the action was not an equitable one, and did not impose on plaintiff the necessity of offering to restore the consideration received for the contract as a condition of relief. Rehearing (1902) 42 S.E. 1040, 131 N.C. 830, denied.

The contract discussed in the opinion was construed and passed upon in Gay Manufacturing Co. v. Hobbs, 38 S.E. 26 128 N.C. 46, 83 Am. St. Rep. 661. In setting out its terms the court there says: "The contract was entered into on the 26th of April, 1887, between Noah Hollowell and his wife and the plaintiff; and it was set forth therein that for the consideration of $200--one half to be paid on the execution and delivery, and the other half to be paid in twelve months--Hollowell and wife had sold and conveyed to the plaintiff 'all the timber then there, fourteen inches across the stump when cut, on fifty acres of Hollowell's land.' It was further stipulated in the contract that Hollowell was to pay all taxes, dues, assessments, etc., on the land and on the timber, and that there was allowed to the plaintiff 'the full term of five years within which to cut and remove the timber hereby conveyed; said term to commence from the time said party of the second part begins to manufacture said timber into lumber." D'

Pruden & Pruden and Shepherd & Shepherd, for petitioner.

W. M. Bond, for respondent.

WALKER J.

This is a petition to rehear the above-entitled case, which was decided by a per curiam order at August term, 1902, and is reported in 131 N.C. 830, 42 S.E. 1040. This case and Monds v. Lumber Co., 131 N.C. 20, 42 S.E. 334, were argued at the same time, with the understanding, as the court then thought, that the former case should abide the decision in the latter; but counsel inform us now that the two cases were argued together only for the sake of convenience, as the facts and principles of law involved in each of them are substantially the same, and it was not intended that the plaintiff in this case should be concluded by the decision in the Monds Case, in which no petition to rehear is filed. We accept this statement of counsel as to the real understanding of the parties, and will proceed to consider the errors alleged in the petition.

The contention is that the petition should be heard as if an opinion had been filed in the case substantially like the one in the Monds Case, the necessary changes being made to suit the facts wherein they may differ from those in the latter case; and, this being done, the petitioner assigns as errors that in the Monds Case, which is based upon the authority of Mfg. Co. v. Hobbs, 128 N.C. 46, 38 S.E. 26, 83 Am. St. Rep. 661, and Rumbough v. Mfg. Co., 129 N.C. 9, 39 S.E. 581, the court construed the contract between the parties as a lease, and therefore void for uncertainty as to the time of its beginning, whereas, in fact and in law, there was a sale outright of the timber; the contract being executory as to the right to cut and remove it, which continued until abandoned in some way by the purchaser. It is also alleged that the court erred in deciding that the action was not of an equitable nature, and in its essence like a suit in equity to remove a cloud from the plaintiff's title, whereas the court should have held that the plaintiff had come into a court of equity for relief, and should be compelled to return the $200 paid to him at the time the contract was made by the Gay Manufacturing Company; the defendant having succeeded to all its rights and equities by virtue of the deed of the latter company to it.

It is a mistake to suppose that the court, in Manufacturing Co. v. Hobbs, supra, decided that the contract must be construed as a lease of the timber trees, or as a term for years. The court merely stated that it so far partook of the nature of a lease as to require the application of the same rule of law in determining its validity as would apply in the case of leases or terms for years, and that, as in such cases there must be a certain beginning and a certain end, the contract is void, as no definite time is fixed for the beginning of the term. 2 Blk. 143, 318. A bare lease does not vest an estate in the lessee, but only gives him a right of entry, which is called his interest in the term (interesse termini); but when he has actually entered, and thereby accepted the grant, the estate is then, and not before, vested in him, and he is possessed, not properly of the land, but of the term for years; possession or seisin of the land remaining still in him who has the freehold. 2 Blk. 144. While some of the cases in this and other states liken a contract of the kind we are construing to a lease, it may be true that it should not be technically so construed, but that it should be regarded as a conveyance of the timber, or an interest or estate in the timber, upon condition that, if it is not cut and removed within a given time, the interest or estate so conveyed shall revest in or revert to the grantor. While we are inclined to adopt this as the better interpretation, and the one more perhaps in consonance with the intention of the parties, as disclosed by the language employed by them, yet we think that, however the contract may be considered with reference to the interest or estate of the defendant's assignor, the result in this case must be the same; and even if the title in the trees vested the very moment the contract was delivered, and by virtue of it, as an executed contract of sale, that title has been lost by inaction or failure to comply with the condition upon which it was conveyed, or, more exactly speaking, by failure to cut the timber within the time limited by the contract. There appears to be some diversity of opinion to be found in the cases as to when the title to the timber passes--whether immediately upon the execution of the instrument of conveyance, or not until the timber is cut and removed--in a case like this, where the time limit extends not only to the cutting, but to the removal. This distinction, if well taken, can make no practical difference in the construction of the contract under consideration, as we hold that the time for cutting and removing the timber, as fixed by the contract, had expired before this suit was brought; and it is therefore immaterial whether we decide that the title never passed out of the plaintiff, as the timber was not cut within the time, or reverted to him at the end of the allotted time by reason of the failure to comply with said condition. In neither view of the matter can the defendant succeed in this action.

We are not inadvertent to the fact that some courts, whose decisions are entitled to the highest respect, have held that the title passes to vendee, if we may so call him, and remains in him notwithstanding the expiration of the time fixed for the cutting and removal of the timber, so that, if he enters upon the land to cut the timber, his vendor may sue him in an action in the nature of trespass quare clausum fregit, and recover damages for breaking the close, though he cannot recover in an action in the nature of trespass de bonis asportatis, or for the value of the timber so cut and removed, after the time has run out. We cannot adopt this principle as the one which should determine the rights of the parties in such cases, and especially are we unable to do so in this case,...