Burchfield v. Hodges

• Decision Date: 14 March 1946
• Citation: 197 S.W.2d 815,29 Tenn.App. 488
• Parties: BURCHFIELD et al. v. HODGES.
• Court: Tennessee Court of Appeals

197 S.W.2d 815

29 Tenn.App. 488

BURCHFIELD et al. v. HODGES.

Court of Appeals of Tennessee, Eastern Section.

March 14, 1946

Certiorari Denied by Supreme Court.June 29, 1946.

Appeal from Chancery Court, Sevier County; Ben RobertsonChancellor.

Suit by J. R. Burchfield and others against W. E. Hodges and another for an injunction restraining defendants from cutting timber wherein named defendant filed a cross-bill.From a decree granting an injunction, both complainants and named defendant appeal.

Decree modified and, as modified, affirmed.

O. M. Connatser, of Sevierville, for appellants.

Wm. J. Barron, of Morristown, for appellee.

HALE Judge.

Both the complainants and the defendant have appealed from the Chancellor's decision.His findings of fact and conclusions of law are as follows:

'1) Complainants are the owners of a tract of land containing 300 acres, more or less in Sevier County.On this tract was a large amount of timber suitable for lumber.

'2) Defendant, W. E. Hodges, is in the general lumber business which is used in building and construction work.He handles mostly pine and hardwood, and he buys boundaries of timber and has the same cut and manufactured into lumber.He sells lumber wholesale and retail.He does not engage in the acid wood, cordwood or pulpwood business generally.

'3) The defendant, A. J. Bandy, is a typical sawmill man, having engaged in the limber and sawmill business for a number of years.He cuts logs in the woods and manufactures them into lumber or portable mills.That has been his occupation for many years.He has not been engaged in the acidwood, cordwood and pulpwood business.Prior to June 24, 1941, defendant, A. J. Bandy, learned of the tract of land or timber owned by complainants and forthwith sought to purchase same, and found a willingness on the part of complainants to sell.Defendant Bandy and complainants reached a tentative agreement with respect to the price, towit: $20,000.00 cash, upon the execution of a conveyance for said timber.This was more than the defendant Bandy could command at the time, and defendant Bandy got in touch with his co-defendant, W. E. Hodges, who he knew could meet the terms of complainants.This was agreed to by W. E. Hodges, provided Mr. George Barnard, his timber cruiser, recommended the purchase.Mr. Barnard along with Mr. Bandy cruised said timber and recommended the purchaser of the boundary by Mr. W. E. Hodges.

'4) After the cruise, complainants delivered their title papers to defendant Bandy, who took them to defendant Hodges, who placed them with John R. King, attorney, to prepare papers conveying complainant's timber to defendant Hodges.This proposed conveyance carried with it certain conditions and restrictions, which were later placed in it before its execution.After the title papers were prepared for complainants, Mr. Hodges turned them over to Mr. Bandy together with two checks payable to complainants, one in the sum of $18,000.00 and one in the sum of $2,000.00, being the amount of the consideration in the proposed conveyance.The check for $2,000.00 issued, as above stated, was because defendant Bandy had informed his co-defendant Hodges he might be able to purchase said timber for less than $20,000.00.Both defendants knew at the time that complainants would accept $20,000.00 for the timber.That if the timber should be purchased for less, such sum under $20,000.00 was to be turned back to Mr. Hodges.

'The record discloses that the amount agreed on for the timber at the date of the execution of the conveyance was $19,000.00.Defendant Bandy delivered the two checks to complainant, L. C. Burchfield, who in turn issued check to Mr. Bandy for $1,000.00, however, the record discloses that no part of this was returned to defendant Hodges.He paid the full consideration set out in the conveyance.The final transaction, as well as the completion of the conveyance was consummated in the office of Zirkle and Wynn in Sevierville.^[1] The granting clause of said conveyance is as follows:

"Know all men by these presents: That for and in consideration of the sum of $20,000.00 to us in hand paid, the receipt of which is hereby acknowledged, we, J. R. Burchfield, L. C. Burchfield, G. W. Burchfield, have bargained, sold and by these presents do hereby bargain, sell, transfer and convey to W. E. Hodges, all of our right, title, interest and claim in and to all of the timber and forest products on the following tract of land:' (Description omitted.)

'At the end of this description are the words:

"Containing 300 acres be the same more or less.'After this clause, the following exception is made: ' All lands and timber belonging to L. C. Burchfield between HighwayNo. 35 and the wire fence, about one-fourth mile south and southeast of said Highway are excepted.'^[2]

"For the same consideration we also have granted and do hereby grant to Hodges two points of ingress and egress from said Highway to said boundary of timber.'The habendum clause is as follows:

"To have and to hold to him, the said Hodges, his heirs and assigns, said timber and forest products.'

'The next paragraph is the covenant of warrant and is not copied herein.

'Following the covenant of warranty is the following clause:

"It is mutually agreed and distinctly understood that all of said timber and forest products are to be cut and removed from the ground within a period of four years from this date and that said Hodges or his vendees have full right to enter upon said ground for the purpose of cutting, logging and manufacturing said timber and forest products into lumber, and to that end have the right to set saw mills on said ground and to stack lumber thereon and to make such use of said ground as may be necessary to accomplish the manufacture of said timber and forest products into lumber, and the removal of the same therefrom.Possession of all lands not necessary for the foregoing purpose will be restored to the parties of the first part as said timber is cut and removed.'²

'The record discloses that complainants, L. C. and J. R. Burchfield would not accept said conveyance unless the clause italicized above (written in long hand in the conveyance) was inserted therein.

'With the insertions, written in said instruments in long hand, underscored above, the defendantA. J. Bandy delivered the two checks issued by his co-defendant, W. E. Hodges.It further appears that the execution of said agreement, the conditions and restrictions set out in said conveyance was made between the complainants and the defendant, A. J. Bandy, for and on behalf of his co-defendant, W. E. Hodges, it appearing that defendant Hodges had never been on the land, upon which said timber was located at that time.

'On July 5, 1941, W. E. Hodges conveyed said timber to his co-defendant, A. J. Bandy for the sum of $20,000.00.This consideration was represented by a promissory note due four years from date executed by A. J. Bandy, bearing date with the conveyance with interest from date and providing for ten percent attorney fees.Said note is secured by lien in the face of the conveyance.In addition to this security, defendant, W. E. Hodges, was secured by chattel mortgage on personal property of defendant Bandy.^[3]

'Shortly after the conveyance of said timber by defendant Hodges to his co-defendant, A. J. Bandy, he entered upon the premises and began cutting timber of sufficient size to be manufactured into lumber.He cut nothing but such as could be manufactured into lumber on a portable saw mill.Defendant made at least ten saw mill sites where he manufactured the timber into lumber, and he cut practically all the timber that could be manufactured into lumber.However, there is scattered over this entire three hundred acres, witnesses testify, anywhere from fifteen thousand to ninety thousand feet of standing timber, which could be cut into lumber.^[4]

'Defendant, A. J. Bandy, continued the cutting of this timber and manufacturing the same into lumber until about July or August 1943.He then removed his mill or mills from the lands of complainants and informed them he had finished cutting the timber and was restoring to them possession of the land together with the cull lumber left on the premises.The gates had been kept locked by defendant Bandy and after surrendering possession complainants likewise locked the gates, for the purpose of prohibiting trespass upon their land.

'Approximately one year after defendant attempted to turn possession of the property to complainants, his co-defendant, Hodges, sent other employes to the land in question, but possession thereof was refused by complainants.Thereupon defendants employes cut the chains off the gates with a hack saw, entered upon the land and began the cutting of small trees that were only large enough for acid wood, cordwood or pulpwood, and not of sufficient size to be manufactured into lumber.

'With respect to the exception excluding timber on the tract of land favorable to L. C. Burchfield, which is written in long hand following the words 'three hundred acres more or less,' in the original conveyance, the Court finds that this land and timber was pointed out to defendant Bandy, (who manipulated the trade for the timber and with the complainants), and upon whose recommendation the deed was made to W. E. Hodges with said exception written therein before it was signed and the defendant, A. J. Bandy, under this record, accepted the deed for and on behalf of Mr. Hodges and no question had been raised with respect thereto until the institution of this suit.It appears however that title to a part of the land described in the exception rested in J. R. Burchfield, but complainan...