Davis v. Butler

• Decision Date: 10 April 1922
• Docket Number: 22254
• Citation: 128 Miss. 847,91 So. 279
• Court: Mississippi Supreme Court
• Parties: DAVIS v. BUTLER, et al

91 So. 279

128 Miss. 847

DAVIS v. BUTLER, et al

No. 22254

Supreme Court of Mississippi

April 10, 1922

1. VENDOR AND PURCHASER. Timber upon land at time of sale is part of realty, and subject to vendor's lien.

Timber growing upon the land at the time of sale is a part of the realty, and a vendor's lien, reserved in the deed to secure the balance of purchase money, is upon the growing timber as well as the land.

2 EVIDENCE. Parol evidence inadmissible to show agreement contradicting recital of vendor's lien in deed.

Where a vendor's lien is reserved in a deed, evidence is inadmissible to show a parol, previous, or contemporaneous agreement between the parties to contradict the recital of the vendor's lien.

3 ESTOPPEL. Operates only in favor of one relying upon the act representation, or silence of another.

Estoppel operates only in favor of one who, in reliance upon the act representation, or silence of another, so changes his situation as that injury would result if the truth were shown.

4. VENDOR AND PURCHASES. Third party purchasing timber held charged with notice of vendor's lien.

Where a deed is of record in which a vendor's lien is reserved upon growing timber to secure a balance of purchase money, and the vendee subsequently sells the growing timber to a third party, this party is charged with notice of the vendor's lien.

5. ESTOPPEL. Vendor held not estopped from asserting vendor's lien. Where a holder of a vendor's lien on timber understands that the vendee expects to sell the timber to another party so that the other party can cut and remove it, and after the purchase of the timber by this party he tells him he is glad to know he has bought the timber, and later on asks him about the details of his purchase, and does nothing to assert his vendor's lien until default has been made in the payment of one of the notes, and the deed is of record when the timber is purchased, the holder of this lien is not estopped by these acts from asserting his vendor's lien.

HON. R. W. CUTRER, Chancellor.

APPEAL from chancery court of Franklin county, HON. R. W. CUTRER, Chancellor.

Action by L. E. Davis against E. H. Butler and others. From a decree dissolving a temporary injunction, the plaintiff appeals. Reversed, injunction reinstated, and cause remanded.

Decree reversed, temporary injunction reinstated, and cause remanded. Suggestion of error overruled.

Thos. McKnight, for appellant.

Ratcliff Kennedy and L. A. Whittington, for appellee.

SYKES, P. J. SYKES, P. J. on Suggestion of Error.

OPINION

SYKES, P. J.

By this appeal we are called upon to review the decree of the chancellor in dissolving a temporary injunction restraining the defendants from cutting and removing timber from certain lands. The bill alleges that the appellant (complainant) Davis sold to the appellee (defendant) Whittington certain lands, and reserved a vendor's lien upon these lands in his deed to secure the balance due of the purchase money; that Whittington has failed to meet certain of these payments at maturity; that subsequent to his purchase of these lands Whittington sold the timber situated thereon to the defendant Butler, and that Butler has removed a large part of this timber, and is continuing to cut and remove same. The bill prayed that the defendants be enjoined from cutting and removing the timber until the purchase money was paid, for an accounting, for a decree against Whittington for the purchase money, for a sale of the lands, and for other relief. A temporary injunction restraining the defendants from cutting the timber was granted by the chancellor. A motion to dissolve was heard upon answer of Butler and oral testimony, and the temporary injunction was dissolved.

It is unnecessary to set up in detail the allegations of the bill and answer and all of the testimony. We will merely set out the material facts which govern our decision of this appeal.

The record in this case shows that the appellant, Davis, was the owner of a plantation of something over one thousand, one hundred acres. Upon this plantation was some very valuable timber. Davis wished to sell the plantation, and Whittington wished by buy it. He wanted the land, but not the timber. The appellee Butler was engaged in the timber business, and Whittington conceived the idea that he could interest Butler in purchasing the timber. He saw Butler about it, and he and Butler and Davis made a partial inspection of the plantation. It is possibly true that the appellant Davis knew that Whittington hoped to make a trade with Butler about the timber, should Whittington buy the plantation. After looking at it, Butler and Whittington, in the absence of Davis, entered into an agreement whereby Butler was to purchase the timber on the Davis place from Whittington, in case Whittington purchased the plantation from Davis. Butler and Whittington had already entered into a contract under which Butler had purchased from Whittington other timber on another plantation owned by Whittington. In discussing the purchase of the Davis timber Whittington told Butler it would be necessary for him (Butler) to make a cash payment of five thousand dollars, and make certain notes payable monthly, so that Whittington could discount a part of these notes, and with the five thousand dollars make a sufficient cash payment to Davis approximately equalling the value of the timber. This agreement was entered into between Butler and Whittington, in the absence of Davis and without Davis' knowledge and consent. A few days thereafter Whittington went to see Davis about purchasing the plantation. In that conversation Whittington claims he told Davis that he (Whittington) expected to sell the timber to Butler, and that he wished to make a cash payment upon the plantation approximately equalling the value of the timber, so that he could sell the timber to Butler. The amount of the cash payment and the deferred payments were all suggested by Whittington and agreed to by Davis, whereupon Whittington, who is an attorney, wrote the deed for the plantation, in which deed a vendor's lien is expressly reserved, and which deed was duly executed by Davis and wife. A few days thereafter Whittington consummated his deal with Butler, whereby Butler purchaser the timber on the Davis tract of land from Whittington. At the time of Butler's purchase, Whittington's deed, in which a vendor's lien is reserved, was of record in the chancery clerk's office. Butler moved his sawmill some time thereafter upon this land, and began cutting timber, which fact was known to Davis. Subsequent thereto Whittington defaulted in the payment of...