C.W. Zimmerman Mfg. Co. v. Wilson

• Decision Date: 20 December 1917
• Docket Number: 1 Div. 15
• Citation: 201 Ala. 70,77 So. 364
• Parties: C.W. ZIMMERMAN MFG. CO. v. WILSON.
• Court: Alabama Supreme Court

77 So. 364

201 Ala. 70

C.W. ZIMMERMAN MFG. CO. v. WILSON.

1 Div. 15

Supreme Court of Alabama

December 20, 1917

Appeal from Circuit Court, Clarke County; Ben D. Turner, Judge.

Bill in equity to quiet title by D.C. Wilson against the C.W Zimmerman Manufacturing Company. Decree for plaintiff, and defendant appeals. Affirmed in part, and reversed in part.

T.J Bedsole, of Grove Hill, for appellant.

F.E Poole, of Grove Hill, for appellee.

MAYFIELD J.

Appellee filed the bill in this case to quiet and determine title to lands described. The bill alleged that complainant had title and that he was in the actual possession. It is insisted by appellant that these two material allegations were denied in the answer, and that neither was supported by proof, and that, as these were both made jurisdictional facts, complainant of necessity failed, and his bill should have been dismissed.

If appellant's premises be conceded, or be found to be true, its conclusion is correct, and the result necessarily follows, nothing further appearing. We do not find, however, that the premises are wholly true in legal effect, though at first reading of the pleadings and proof they do appear to be true. In the first place, the paragraph of the bill which contains these allegations is denied, but only pro forma or perfunctorily, which, however, would be sufficient to put the burden of proof on complainant as to the allegations, if nothing further appeared in the answer or cross-bill to change the effect of the denial. The very next paragraph of the answer, which follows the pro forma denial of these allegations as to complainant's ownership and possession, sets forth respondent's claim of title, in compliance with the requirement of the bill; and this answer shows conclusively that respondent's sole claim of title is to certain pine timber or trees upon the land, and that it claims the timber by virtue of deeds or conveyances from one B.M. Norris, who is shown to be the common source of title through which both parties claim. This being true, neither party can dispute the title of the common source; and there was certainly evidence sufficient and conclusive to show that all the title the common source ever had passed to the parties to this suit, either by conveyances or by adverse possession, at least, the equitable title did, which is sufficient in a court of equity. As respondent disclaimed any title to the land, other than that to the timber, with the right to remove it, this allegation was sufficiently proven as to title.

As to the allegation of possession, we find that it was also proven, not in terms, but in effect. The evidence on this phase is not as full and specific as it might be, but obviously this is so because there was no real dispute as to complainant's possession of the land, nor as to that of any party under whom he claimed title.

Courts of equity properly look through mere forms and shadows to the real and substantial equities of the controversy. So viewing this record, we feel no hesitancy in finding that these two material and jurisdictional facts were sufficiently proven.

We are of the opinion, however, that the trial judge erred in finding that the respondent had no title or interest in any of the timber on the lands in question. While most of the witnesses did on the examination in chief testify that there was not, at the time of the suit, any timber or trees on the land which was embraced in, or conveyed by, the deed through which respondent claims title, yet on cross-examination of all of these witnesses, including the complainant himself, it was shown that there was some timber or trees then on the land, which would have passed, and that the title thereto did actually pass to the respondent, by deeds which are not questioned. The description of the timber in the deeds in question is as follows:

"All the pine timber now standing and being on the following described lands"--with the indication of such lands by government numbers.

The original owner testified as follows as to the timber then on the land:

"There is some short straw sap stuff on this land that was on it when I sold it. I was on the south end of this land yesterday, but there was no long leaf on it. There are at least 40 acres of timber on this land that was on it when I sold to Zimmerman. They cut the long leaf stuff out. This is not a solid block of 40 acres, but this will amount to 40 acres, all told."

On redirect he testified:

"On this 40 acres of timber above referred to, there might have been a few trees large enough to make lumber 18 or 20 years ago, but the great majority of it was not large enough to be merchantable."

Another witness testified:

"The short lead [leaf?] pine is there now that was on that land in 1899."

Another stated as follows:

"There is some small short leaf pine timber on this land now. Some of it is on it that was on it as far back as I remember it--13 years."

There was much other evidence to the same effect, which the trial judge must have overlooked.

We feel certain that there were, at the filing of the bill and at the time of trial, some trees and timber on the land in question which passed to respondent, and which, under the law as declared in the Zimmerman Case, 149 Ala. 380, 42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am.St.Rep. 58, belonging to respondent according to the undisputed evidence in this case. The conveyance of the timber in this case is almost identical with that construed in the case of Zimmerman v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am.St.Rep. 58. In fact we suspect that the forms of both deeds were the same, as the deeds were made near the same time, and to the same grantee, except that in the one case the grantee was a partnership, and in the other (later), it was the succeeding corporation.

There is, however, another difference between the two deeds, and a difference that must be considered. In the deed heretofore construed the period in which the timber should be removed was fixed at and limited to two years; whereas in this case the time in which the removal must be made is left blank. The clause now in question is as follows:

"The said C.W. Zimmerman & Co. is allowed ______ years from this date within which to cut and remove the timber hereinabove conveyed."

The date referred to is the 14th day of June, 1899. In the Zimmerman Case, after reviewing many conflicting decisions on the time limit for removing the timber, the opinion concludes:

"A fair résumé of the holding in the case is that, when standing timber is sold and conveyed and no time fixed for the removal of the timber, the purchaser has a reasonable time within

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