Butterfield Lumber Co. v. Guy

• Citation: 46 So. 78,92 Miss. 361
• Decision Date: 13 April 1908
• Docket Number: 13,194
• Court: Mississippi Supreme Court
• Parties: BUTTERFIELD LUMBER COMPANY v. GEORGE W. GUY

46 So. 78

92 Miss. 361

BUTTERFIELD LUMBER COMPANY v. GEORGE W. GUY

No. 13,194

Supreme Court of Mississippi

April 13, 1908

FROM the chancery court of Lincoln county, HON. G. GARLAND LYELL Chancellor.

Guy appellee, was complainant in the court below; the lumber company, appellant, was defendant there. From a decree overruling a demurrer to the bill of complaint the court below granted, and defendant prosecuted, an appeal to the supreme court.

The deed the construction of which was involved is as follows:

"State of Mississippi, Lincoln county. In consideration of the sum of two hundred dollars cash in hand paid, the receipt of which is hereby acknowledged, we convey and warrant to the Norwood & Butterfield Company all the green pine timber on the following described land, to-wit: The N. E. 1/4 of S.W 1/4, and N. 1/2 of S.W. 1/4 of S.W. 1/4, and N. 1/2 of S. E 1/4 of S.W. 1/4, section 36, township 5, range 9 east containing eighty acres solid timber, situated in the county of Lincoln, state of Mississippi. We further convey the right to enter upon said land with log carts and log wagons to remove said timber off said land. We further convey and warrant to said company a right of way one hundred (100) feet wide on, through, and across the N. E. 1/4 of S.W. 1/4, section 36, township 5, range 1 east, to be laid off at will and pleasure of said Norwood & Butterfield Company. Witness my signature this 15th day of March, A. D. 1892. G. W. Guy. Victoria Guy."

Reversed.

Mayes & Longstreet, for appellant.

Where a deed to timber standing on a certain piece of land is duly executed, and where such deed does not, by its terms, fix any definite time within which the timber shall be removed, there is no implication or presumed intention of the parties that such timber shall be removed within a reasonable time.

Where parties by their contract have fixed a definite time within which the timber shall be removed, the contract made by them, on its face, negatives the idea that the purchaser of the timber shall have such time as he shall please; and to hold that he takes an indefinite time would be to contradict the very terms of the instrument of contract.

In this class of cases, the court will find that there has been a diversity of view as to the consequence of the lapse of the time fixed where the timber has not been removed; some cases including Clark v. Lumber Company, 90 Miss. 479, 43 So. 813, holding that the title to the timber is thereby forfeited and reverts to the land owner; while other cases hold that the title to the timber notwithstanding, remains in the purchaser, but that the purchaser cannot go on the land to remove this timber without committing trespass quare clausum because his license to enter has expired by its own limitation.

With that diversity of view, we are in this matter in no wise concerned, because our contract is not in those terms.

The investigation of the question involved illustrates very forcibly an evil from which the bar and the courts of this more recent period suffer much. This evil is the creation of a line of fallacious and unsound authority by and through the hurried, slipshod, and inaccurate work of text book writers and legicographers. By reference to this topic in the text books, in the Encyclopedia of Law, and in the elaborate notes to the case of McRae v. Stilwell, 55 L. R. A. 513, one would think that, naturally, a view has been obtained of the field of authority, and that a doctrine had been found therein stated which was true and reliable. Some of the cases, proceeding on that idea, have followed what those writers, lexicographers and commentators have stated to be the rule; and thereby the vice and the defect of their treatment of the subject have crept into some of the decisions, through hurried and misled work on the part of the judges.

The truth is that in all those books the balance of authority on the proposition under discussion has been struck, and the rule on the subject announced by those writers, without their having ever found what we consider to be, and submit to be, the leading and controlling cases on the subject. They are not cited in any of those notes; and, as a consequence, those writers have stated that to be the rule, which, we submit, is the reverse of the true rule.

Moreover, in many instances, they have cited as authority cases of the class mentioned by us above, where there was an express limitation of time fixed by the terms of the contract.

Another preliminary consideration needs to be noted. In some of the states, the fundamental holding on the contract for the sale of timber, is that the contract does not convey a title vested in the purchaser to real estate; but only conveys a license to enter and sever which being done, the title of the purchaser then vests in and as to personal property.--Of course a decision as to the effect of such a contract, on the point, as to whether such entry and severance must be within a reasonable time, or may be made indefinitely, has no relation to, and cannot effect, that question when it arises in a state like Mississippi in which the holding is well settled, as a rule of property, that such a sale vests a present interest in fee to a part of the realty.

Again: another distinction needs to be considered. In some of the states, the fundamental holding of a timber contract is that the sale is made on a condition subsequent; the condition being that there shall be an entry and severance; and no rifle attached to the timber until that condition is fulfilled.

Neither are the decisions rendered in those states applicable in Mississippi, where it is settled that a contract for the sale of timber does not occupy that attitude, but is, as above stated.

The rule in Mississippi in regard to the effect of a written contract by which the timber on a piece of land is sold, is perfectly well settled by a series of decisions; and it will be observed that this state has gone quite as far as any of the states in upholding and enforcing the title of the vendee. McKenzie v. Shows, 70 Miss. 388, 12 So. 336.

Please note that in the case of McKenzie v. Shows it was claimed by McKenzie's counsel that although the deed by the husband might be void as against the present homestead interest, it still had legal operation to vest an interest in reversion expectant on the termination of the homestead estate (see brief of R. H. Thompson, page 389); but this view also the court denied, declaring that "There is no estate in reversion expectant upon which appellants can enter upon the proper sale of the homestead by the husband and wife jointly, for the reason that the attempted conveyance and incumbrance of the husband alone in the sale by deed of the timber, was absolutely invalid to convey any right or title." McKenzie v. Shows, Supra; Walton v. Lowrey, 74 Miss. 484, 487, 21 So. 243; Fox v. Lumber Co., 80 Miss. 1, 31 So. 583.

We have no case in this state as yet on the precise application of the rule in the aspect now under consideration. But, as shown above, it is settled, and settled as a rule of property, that a timber sale, where the deed is properly executed, is in this state the sale of a present vested interest in land, and that interest separate and undivided.

There are several authorities in other states which we will now call to the attention of the court. Howard v. Lincoln, 13 Me. 122; Goodwyn v. Hubbard, 47 Me. 596; Gregg v. Birdsall, 53 Barb., 402; Knotts v. Hybrick, 12 Rich. L. (S. Car.), 314; Dils v. Hatcher (Ky., 1902), 69 S.W. 1092; Lumber Co. v. Cornett (Ky., 1901), 63 S.W. 974; Hogg v. Frazier (Ky., 1902), 70 S.W. 291; Wait v. Baldwyn, 60 Mich. 622; Smith v. Furnish, 68 N.H. 123, 47 L. R. A., 226; Magnetic Ore Co. v. Marbury Lumber Co., 104 Ala. 465; 27 L. R. A., 434.

The case of Gex v. Dill, 86 Miss. 10, 38 So. 193, does not affect this question. It is true that in that case the court made some observations about the vendee of the turpentine right having a reasonable time in which to begin his work under a deed which did not by its terms fix any period for his beginning. But the court did not adjudicate that such was the proper construction to be placed upon that deed. On the contrary, the court very carefully guarded against that proposition. It said:

"We have examined all the authorities given in the briefs of counsel. Under them we think the most that can be claimed, if it can be, is that the work must commence in a reasonable time; and in this case we think it commenced in a reasonable time."

Green & Green, on the same side.

Under the decisions of this State it is settled that timber is a separate portion of the realty, and that the owner can carve out distinct and separate estates in fee to each of these which may co-exist. Hall v. Gardiner, 89 Miss. 609, 43 So. 2; Fox v. Lumber Co., 80 Miss. 1, 31 South, 583; Walton v. Lowrey, 74 Miss. 484, 21 So. 243; McKenzie v. Shows, 70 Miss. 338, 12 So. 336; Harrell v. Miller, 35 Miss. 701.

The timber being a separate portion of the fee, the owner of the entire fee divided it into two distinct parts and retains one portion, while he conveys the other.

Appellee was grantor, appellant, grantee, and the words used are those of the grantor, and if there be room for construction, that construction will be adopted which is favorable to the grantee, this being a deed poll. 2 Min. Ins., 1058; Greenwood v. Ligon, 10 Smed. & M. (1848), 617; 17 Am. & Eng. Ency. of Law (2d ed.), 14.

The estate granted in the timber is in fee, and being in fee the time wherefor it endures is fixed and defined under the law. An estate granted in fee has the time of its duration determined so that there can be no implication of other or different time than that created by contract of ...