Carolina Timber Co. v. Wells

• Decision Date: 29 March 1916
• Docket Number: 220.
• Citation: 88 S.E. 327,171 N.C. 262
• Parties: CAROLINA TIMBER CO. v. WELLS ET AL.
• Court: North Carolina Supreme Court

88 S.E. 327

171 N.C. 262

CAROLINA TIMBER CO. v. WELLS ET AL.

No. 220.

Supreme Court of North Carolina

March 29, 1916

Appeal from Superior Court, Duplin County; Bond, Judge.

Controversy submitted without action on case agreed between the Carolina Timber Company and R. A. Wells and C. B. Page. From a judgment for defendant Page, defendant Wells appeals. Affirmed.

From the facts agreed upon, it appears that on April 25, 1906, R A. Wells, then owning a tract of land, for valuable consideration in hand paid, to wit, $450, conveyed to the Cumberland Lumber Company the timber on said land of specified dimensions, with the right to cut and remove the same at any time within 10 years from the date of the conveyance. The instrument contained also the stipulation that the grantee, his assigns and successors, should have additional time to cut and remove, etc., not exceeding 5 years, paying therefor annually, within 90 days from April 25, 1916, of the years following and respectively, to R. A Wells or his personal representatives, a sum equal to the interest on the purchase price; that on March 26, 1907, said R. A. Wells, sold and conveyed said land in fee simple to his codefendant, C. B. Page, who now holds same under said deed that the title, rights, and interests of the Cumberland Lumber Company under said conveyance have been acquired and are now owned by plaintiff; that the timber on said land has never been cut and plaintiff, the Carolina Timber Company has determined to ask for an extension of time for one year from April 25th within which to cut and remove the timber and has so notified both R. A. Wells and C. B. Page of its purpose and within the specified time has tendered the amount due as per contract; that the entire amount of $27 is claimed by each of the defendants, and they have so notified plaintiff.

Upon these facts, the court, being of opinion that the entire amount was due and owing to C. B. Page, so entered its judgment, and defendant R. A. Wells excepted and appealed.

Standing timber is realty, subject to the laws of transfer applicable to that kind of property.

H. D. Williams, of Kenansville, for appellant.

Stevens & Beasley, of Kenansville, for appellee.

HOKE, J. (after stating the facts as above).

Our decisions hold that standing timber is realty subject to the laws of devolution and transfer applicable to that kind of property, and that timber deeds of this character, as ordinarily drawn, convey an estate of absolute ownership, defeasible as to all timber not cut and removed within the specified period. Williams v. Parsons, 167 N.C. 529, 83 S.E. 914; Midyette v. Grubbs, 145 N.C. 85, 58 S.E. 795, 13 L. R. A. (N. S.) 278; Lumber Co. v. Corey, 140 N.C. 467, 53 S.E. 300, 6 L. R. A. (N. S.) 468. The cases on the subject are to the effect, further, that a stipulation of the kind now presented, providing for an extension of the time within which the timber must be cut, is in the nature of an option, and it is held by the great weight of authority that contracts of this character do not of themselves create any interest in the property, but only amount to an offer to create or convey such an interest when the conditions are performed and working a forfeiture when not strictly complied with. Waterman v. Banks, 144 U.S. 394, 12 S.Ct. 646, 36 L.Ed. 479; Thacher v. Weston, 197 Mass. 143, 83 N.E. 360; Gustin v. School District, 94 Mich. 502, 54 N.W. 156, 34 Am. St. Rep. 361; Newton v. Newton, 11 R.I. 390, 23 Am. Rep. 476; Bostwick v. Hess, 80 Ill. 138.

Our own decisions are in general approval of these principles ( Ward v. Albertson, 165 N.C. 218, 81 S.E. 168; Winders v. Kenan, 161 N.C. 628, 77 S.E. 687; Bateman v. Lumber Co., 154 N.C. 248, 70...