Colby-Hinkley Co. v. Jordan

• Decision Date: 12 June 1906
• Citation: 41 So. 962,146 Ala. 634
• Parties: COLBY-HINKLEY CO. v. JORDAN.
• Court: Alabama Supreme Court

41 So. 962

146 Ala. 634

COLBY-HINKLEY CO. v. JORDAN.

Supreme Court of Alabama

June 12, 1906

Rehearing Denied June 30, 1906.

Appeal from Probate Court, Marshall County; J. H. Carter, Judge.

"To be officially reported."

Petition by the Colby-Hinkley Company against William G. Jordan, for the partition of personalty. From a decree dismissing the petition, the petitioner appeals. Reversed and rendered.

J. A Lusk, for appellant.

Street & Isbell, for appellee.

TYSON J.

The petition in this case was exhibited in the probate court for the purpose of having divided between the petitioner and the respondent certain logs owned by them in equal shares as tenants in common. The jurisdiction of the court to divide personal property is just as effectual, when properly invoked, as it is to partition real estate. Section 3161, Code 1896.

There seems to be no dispute between the parties as to their respective interest or share in the logs sought to be divided. The point of difference between them seems to be as to certain terms of the contract with respect to the size of the timber and the area from which it was to be cut, and as to which of them breached it. This contract was a verbal one. The respondent was the owner of the timber from which the logs were to be cut and hauled by the petitioner, and when cut and hauled they were to be divided equally between them. The petition seeks only a division of those that have been cut and not a partition of the standing timber which has not been converted into logs by felling. It will scarcely be doubted that, if the effect of this agreement was to invest the petitioner with an interest in the growing timber, it is void because violative of the statute of frauds, and, as to the standing timber unconverted under it into logs, is unenforceable by either party, being merely an executory one as to the timber uncut. But the contract did not invest the petitioner with an estate in the growing timber which is a part of the land. It was nothing more than a license to him by the respondent to enter upon the land of the latter to cut and take away the timber, and was revokable at pleasure except as to the timber which had been converted into logs under it. Riddle v. Brown, 20 Ala. 412, 56 Am. Dec. 202. As to the logs cut, the license had become an executed one and was irrevocable (Giles v Simonds, 77 Am. Dec. 373 and note) and vested in the parties equally a title to...