Childers v. Wm. H. Coleman Co.

• Decision Date: 24 April 1909
• Citation: 118 S.W. 1018,122 Tenn. 109
• Parties: CHILDERS v. WM. H. COLEMAN CO. et al.
• Court: Tennessee Supreme Court

118 S.W. 1018

122 Tenn. 109

CHILDERS v. WM. H. COLEMAN CO. et al.

Supreme Court of Tennessee.

April 24, 1909

Appeal from Chancery Court, Hardeman County; E. L. Bullock Chancellor.

Suit by E. J. Childers against the Wm. H. Coleman Company and others. From an adverse decree, defendants appeal. Affirmed.

C. A Miller and C. G. Bond, for appellants.

J. A Foster, Isaac Orme, and Ben Childers, for appellee.

McALISTER J.

Complainant filed this bill, alleging his ownership in fee of a tract of land in Hardeman county comprising 300 acres, and that the defendants Wm. H. Coleman and J. M. and F. L. Marshall had entered upon said land and were committing waste by cutting and removing timber. Defendants answered the bill, averring that on March 7, 1904, and prior to complainant's purchase of said land, its then owner, J. S. Neely, sold and conveyed to one W. E. Small all of the white oak timber on said land, and that on July 12, 1906, the said W. E. Small for value received, assigned all of his rights and title to said timber contract to the William H. Coleman Company without recourse.

It is averred in the answer that under the original contract the said W. E. Small was allowed three years from the date of said contract to cut and remove said timber, and that thereafter J. S. Neely, the vendor, extended the time for the removal of said timber for a period of two years from July 12, 1906. Hence it is seen that the defense interposed on behalf of defendants is that the William H. Coleman Company had acquired title to the white oak timber on said tract of land by assignment of a contract made with J. L. Neely, the vendor of complainant, some time prior to the sale of said land by the said Neely to complainant, Childers.

On the coming in of the answers, complainant filed an amended bill, alleging:

"That on the 3d of October, 1907, J. S.

Neely and wife, E. A. Neely, were in the actual possession of the lands described in the original bill, and represented to him that said land was unincumbered; that he paid to them $800 the cash consideration, and executed his two promissory notes, due in one and two years, for $800 each, and delivered the same to J. S. Neely and wife, and prior to that time complainant had no notice, actual or constructive, of any alleged claim of defendants; that, when he purchased said land, defendants were not in possession, and so far as complainant knew, were not claiming any right to enter upon said land; and he states on information and belief that defendants had never been in actual possession of said land or the timber, had never cut or removed, and had never attempted to cut or remove, any white oak or other timber from said land up to and for some time after complainants had purchased said land."

Complainant further states as follows:

"He was put in possession of the land by said J. S. Neely on the 3d of October, 1907, and knew nothing of the claim of defendants until after he filed his original bill; that he is an innocent purchaser for value, and had no notice of the sale or transfer of the white oak timber then standing on said land, and that he paid a valuable consideration for the same; that defendants had entered upon said lands, without the knowledge of complainant or his consent, cut and removed and wasted valuable timber, and otherwise damaged complainant to the extent of $300."

It is further charged in the amended bill:

"That the instruments purporting to be deeds of conveyance under which defendants claim a superior title were neither actual nor constructive notice to complainants, for the reason that said assignment did not describe the land, and the instrument purporting to extend the time limit, contained in the original contract for the removal of the timber, was obtained through fraud, and was not properly acknowledged, and the certificate of the notary was not in compliance with the statute."

It was therefore charged that said instruments were not entitled to registration and that no notice was thereby conveyed to complainant.

The prayer of the amended bill is that complainant be declared an innocent purchaser for value without notice, and that he be decreed the title and possession of said land, etc.

Proof was taken, and on the hearing the chancellor, Hon. E. L. Bullock, presiding, decreed that the title of complainant to the land and timber was superior to any claim of the defendants, and that the conveyances under which defendants claimed title constituted a cloud on complainant's title. The chancellor made perpetual the injunction restraining the defendants from cutting and removing timber or otherwise committing waste, and pronounced a decree in favor of complainant for the value of timber already cut, and the damages accruing by reason of said waste, and ordered a reference to the master to take proof and report the amount of said damages. At the March term, 1909, the chancellor rendered a judgment in favor of complainant against the defendants for the sum of $150 for the trees cut and removed by the defendants, and the further sum of $9 as damages caused to the small timber by reason of the trees cut falling against and injuring same. The W. H. Coleman Company appealed from all of said decrees and has assigned errors.

The first assignment is as follows:

"The chancellor erred in decreeing that the title of complainant, E. J. Childers, is superior to the claim of defendants in and to the land and timber described in the pleadings, and that the claim of the defendants to the white oak timber on said lands is not valid, but constitutes a cloud on complainant's title, because the proof in the record shows that the contract under which the Wm. H. Coleman Company claimed ownership and title to the white oak timber was prior in time, and therefore superior in right, to any claim or title that complainant, E. J. Childers, had to said white oak timber. J. S. Neely, from whom both complainant, E. J. Childers, and the defendant Wm. Coleman Company claim title, conveyed and transferred all of the white oak timber on the 300 acres of land described in the pleadings to W. E. Small, by contract dated March 7, 1904; that on July 12, 1906, he extended the time for the cutting of the white oak timber on the lands sold to Small, and later sold to W. H. Coleman Company, to two years from date."

The second assignment of error will be considered in this connection, and is as follows:

"Second. The chancellor erred in making the injunction perpetual. The weight of the proof is that the appellee had notice of the timber contract of J. S. Neely with appellant at the time that he bought the land. The rule 'caveat emptor' applies to him."

The facts established by the record are that in October, 1907, complainant, Childers, who resided at Pulaski in Giles county, purchased this land, lying in Hardeman county, through a resident agent, one Camody. At the time of the sale Mr. Isaac Orme represented the vendor, J. S. Neely and wife. An abstract of title to the land was prepared at the instance of the vendor and sent to Mr. Childers at Pulaski; and, the title having been pronounced perfect by the abstractor, Mr. Childers accepted the deed and made a cash payment of $800, executing his notes for the two deferred payments of $800 each. The deed was executed on the 3d of October, 1907, and Mr. Childers was immediately put in possession of the land. The complainant had no actual or constructive knowledge, at the time he purchased the land, that the defendant W. H. Coleman Company claimed any right, title, or interest in the white oak timber on said land. It also appears that, at the time Childers was put in possession, no agent or employé of the defendant W. H. Coleman Company was in possession of said land nor did the complainant become apprised of any trespass on said land until after the lapse of about two weeks, when some of the defendant's agents went upon said land and began to cut and remove timber; the number of trees cut not exceeding 13. Thereupon complainant filed the present bill, as serting his title in fee to the land, and seeking to restrain the defendants against trespassing and committing waste.

As already stated, the defendant Coleman relied on a contract assigned to that company by W. E. Small July 12, 1906. The contract is as follows:

"For and in consideration of $400 to me in hand paid, I (or we) hereby sell and convey to W. E. Small, or assigns, all of the white oak timber on my land situated in Hardeman county, state of Tennessee, district No. 11, bounded as follows: On the east by Trim, on the north by Mills, on the west by Rogers and Mills, and on the south by Campbell--containing about 300 acres. Said land known as the ___ place, and lies ___ miles of ___. Said Small shall have three years from this date to work same, and shall have right of way to land and timber, with men and teams, to cut and remove same at his pleasure. There is no incumbrance or claim on said land that will interfere with said Small working said timber.

"Signed at Pocahontas, Tenn., this 7th of March, 1904. [Signed] J. S. Neely. "Witnesses:

"B. D. Irby.

"G. L. Paris."

It will be noticed this instrument was not acknowledged, and expired by limitation on March 7, 1907, seven months before the conveyance to Childers. On the back of this instrument, is the following indorsement:

"July 12, 1906.

"For value received, I assign all of my rights and title to the within timber contract to Wm. Coleman Co., without recourse.

"W. E. Small."

It appears that on July 12, 1906, the day on which this assignment was executed, J. M. Marshall, as agent for Wm Coleman Company, went to Dr. Neely to procure an extension of the time limit of three years contained in the original...