Dameron Et Ux v. Rowland Lumber Co

• Decision Date: 19 March 1913
• Citation: 77 S.E. 694,161 N.C. 495
• Court: North Carolina Supreme Court
• Parties: DAMERON et ux. v. ROWLAND LUMBER CO.

77 S.E. 694

161 N.C. 495

DAMERON et ux.

v.ROWLAND LUMBER CO.

Supreme Court of North Carolina.

March 19, 1913.

1. Logs and Logging (§ 3^*)—Timber—Bona Fide Purchaser—Title Acquired.

Where a bona fide purchaser for value bought timber without notice of a mutual mistake in description in the deed to his grantor from the landowner, he acquired title free from any equity resting in the landowner by reason of such mistake, even though he learned of the mistake after paying out his money, when he purchased from the landowner an extension of time within which to cut the timber.

[Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*]

2. Reformation of Instruments (§ 29*) — Grounds—Timber Deed.

Where a bona fide purchaser of timber from a grantee of the landowner subsequently acquires from the landowner a deed giving him an extension of time within which to cut the timber, and such extension deed, by mutual mistake of the parties, perpetuates a mistake occurring in the original timber deed and covers a tract of 216 acres, though it is intended to cover only 75 acres, the landowner is entitled to a reformation of the extension deed, though the purchaser at the time of buying the timber had no notice of the mistake in the original deed.

[Ed. Note.—For other cases, see Reformation of Instruments, Cent. Dig. §§ 112, 113; Dec. Dig. § 29.*]

3. Reformation of Instruments (§ 19*) — Grounds—Mistake—Timber Deed.

A timber deed cannot be corrected or reformed because of the mistake of one of the parties to it, but only when the mistake is mutual or else a mistake of one party brought about by the fraud of the other.

[Ed. Note.—For other cases, see Reformation of Instruments, Cent. Dig. §§ 74-78; Dec. Dig. 19-*]

4. Evidence (§ 553*)—Examination of Experts.

In an action to reform a timber deed for mutual mistake in the description, it was improper to admit the testimony of a surveyor as to where he would have located land described in a deed by a certain indefinite description, where such testimony was elicited by a question which presupposed a deed not in existence and facts not in evidence.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2369-2374; Dec. Dig. § 553.*]

Appeal from Superior Court, Sampson County; O. H. Allen, Judge.

Action by L. L. Dameron and wife against the Rowland Lumber Company. From a judgment for plaintiffs, defendant appeals. New trial.

These issues were submitted to the jury: "(1) Was the description of the land in the original timber deed from the plaintiff to H. L. Pope, trustee, inserted by the mutual mistake of the plaintiff and said Pope? Answer: Yes.

"(2) At the time of the execution of the extension deed referred to in the complaint, was all the timber on plaintiffs' lands embraced in said deed by the mutual mistake of the parties? Answer: Yes.

'(3) If so, what land was intended by them to have been described therein? Answer: Yes; the 75 acres of land in Motley branch, Ward's swamp, and the Great Coharie up to the line chopped by Mr. Joe Faison the first time.

"(4) Is the plaintiffs' cause of action barred by the statute of limitations? Answer: No.

"(5) What damages has the plaintiff sustained by reason of the cutting and removal of the timber on the lands of the plaintiffs, other than the 75 acres referred to in the complaint? Answer: $1,308 damage." The defendant appealed.

A. McL. Graham and G. E. Butler, both of Clinton, for appellant.

H. A. Grady and Fowler & Crumpler, all of Clinton, for appellees.

BROWN, J. This action is brought to correct the description in a deed for timber executed in 1892 by plaintiffs to H. L. Pope, which is as follows: "Bounded by the lands of James Warwick, Redet Carr, Dr. Benton, and Calvin Bowden, being the same property deeded to me from J. D. Packer and wife, registered in Book 43, page 513, etc., containing 75 acres, more or less. Timber to be cut 12 inches and upwards across the stump."

The defendant acquired title by mesne conveyances, and on December 21, 1906, the timber being uncut, purchased from plaintiff an extension of time, evidenced by extension deed duly executed, and under that contract defendant has proceeded to cut the timber, not only on the 75 acres, but on the entire land described in the Packer deed.

The allegation of the complaint upon which the Pope deed is sought to be reformed is as follows: "That said deed calls for only 75 acres of timber on a tract of 216 acres, said 75 acres lying on the south end of said tract, and at the time of the execution of said deed to said Pope cutting off from said 216-acre tract the 75 acres of land upon which the timber was sold. That in drawing the deed for said timber, through the inadvertence of the draftsman, the boundaries of said 75-acre tract were left out; and, while said deed calls for only 75 acres, yet the description therein covers all of the lands of the plain-tiffs. Said error was not known to the...