Coward v. Boyd

• Decision Date: 19 February 1908
• Citation: 60 S.E. 311,79 S.C. 134
• Parties: COWARD et al. v. BOYD.
• Court: South Carolina Supreme Court

60 S.E. 311

79 S.C. 134

COWARD et al. v. BOYD.

Supreme Court of South Carolina

February 19, 1908

Appeal from Common Pleas Circuit Court of Aiken County; J. C. Klugh Judge.

Action by M. M. Coward and others against Col. Dantzler Boyd. Decree for defendant, and plaintiffs appeal. Affirmed.

The following is the decree of the court below:

"The plaintiffs M. M. Coward and T. F. Coward, on May 27, 1905 sold and conveyed to the defendant, C. D. Boyd, a tract of 61 acres of land in said county. The deed of conveyance is in the usual form, purporting to convey the fee simple in said land, is free from ambiguity, and covers definitely and certainly said tract of land, and no reservation or exception of timber appears on the face of it. On September 13, 1905, the same plaintiffs conveyed to the defendant a second tract of land containing 12 acres. In the deed of conveyance of said tract is the following clause: 'But the said T. F. and M. M. Coward do hereby expressly reserve from this conveyance all the available saw pine timber growing and being on the above-described tract of land.' On April 20, 1906, M. M. Coward and T. F Coward, by a written instrument, sold to C. E. Hollman all the pine trees on said two tracts of land, containing 73 acres, together with the right of ingress and egress over said land to cut and haul the timber therefrom, the said contract to terminate on September 1, 1907. Thereafter C E. Hollman attempted to enter upon said land for the purpose of cutting and removing the pine timber therefrom but was forbidden to do so by C. D. Boyd, who claimed to be the owner of all of said timber .

"The plaintiffs M. M. Coward, T. F. Coward, and C. E. Hollman then brought this action, setting forth the facts above recited in their complaint, and alleging further that at the time of the conveyance of the tract of 61 acres aforesaid the said M. M. Coward and T. F. Coward made a verbal reservation or exception from said conveyance of the saw pine timber thereon, to which C. D. Boyd agreed, and that by virtue thereof, and of the written reservation in the conveyance of the tract of 12 acres aforesaid, and the aforesaid sale in writing of said timber to C. E. Hollman, he is now owner of said timber, and entitled to cut and remove the same from said land, and they pray for an injunction restraining the defendant from interfering with the plaintiffs, their agents and servants, in cutting and removing said timber from said land.

"The defendant in his answer denies that there was any reservation or exception from the conveyance of the 61 acres of the timber thereon, and alleges with reference to the reservation of the timber on the 12 acres that it was verbally stipulated and agreed that said timber should be cut and removed by January 1, 1906; that said timber was not cut and removed within the time stipulated; and that no one other than the defendant now has any right to cut and remove any timber from said land.

"For the purpose of the hearing of the cause the counsel for plaintiffs and defendant entered into a written agreement that certain facts are established by the evidence, and amongst other things agreed upon was the statement that: 'At the reference the plaintiff offered only parol evidence to prove the oral agreement set up in the complaint as to the timber on the 61-acre tract, all of which evidence was duly and seasonably objected to by defendant's counsel on the ground that such evidence was inadmissible, because same varied, contradicted, and altered the terms of the deed, which said deed had already been admitted in evidence by both plaintiffs and defendant. It is admitted by defendant's counsel that, if the parol evidence offered is admissible, the plaintiffs have established by the preponderance of the evidence the parol agreement which they set up in reference to the 61-acre tract. This agreement not to prejudice the right of either party to set up any plea arising in law, statutory or otherwise, and in equity, applicable to this case.'

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