Dennis Simmons Lumber Co. v. Corey

• Decision Date: 06 March 1906
• Parties: DENNIS SIMMONS LUMBER CO. v. COREY et ux.
• Court: North Carolina Supreme Court

53 S.E. 300

140 N.C. 462

DENNIS SIMMONS LUMBER CO. v. COREY et ux.

Supreme Court of North Carolina

March 6, 1906

Appeal from Superior Court, Martin County; Cooke, Judge.

Consolidated actions by the Dennis Simmons Lumber Company against Joseph Corey and wife to compel specific performance of a contract for the conveyance of certain timber, and by said Corey and wife against the lumber company to restrain the latter from cutting trees on certain land in controversy measuring more than 12 inches in diameter at the stump 18 inches from the ground. From a judgment in favor of the lumber company in both actions, Corey and wife appeal. Affirmed.

A contract for the sale of "all the pine timber that will measure 12 inches at the stump 18 inches above the ground when cut" should be construed as a conveyance of all the pine timber that would measure 12 inches "or more" at the stump when reached in the process of cutting.

The facts, which in nearly all respects are substantially those stated in the brief of the defendants' counsel, where they are well summarized, are as follows: On the 8th of November, 1899, the plaintiff and defendants entered into the following written agreement: "Received this 8th day of November, 1899, of the Dennis Simmons Lumber Co., $90 in part payment for all pine timber that will measure 12 inches at the stump 18 inches above the ground when cut that is or may be on the following land, viz: [Here follows the description of the tract of land on which the timber stood, said to contain 150 acres, more or less]--which we have sold them for $2,000, $410 to be paid in cash within ten days from this date, the balance ($1,500) to be paid within five years from this date--together with the right and privilege of entering upon the said land and the building of tramroads only, and the use of undergrowth for building same over said land only for the period of ten years from this date. When the Dennis Simmons Lumber Co. shall have paid the entire amount of the purchase money, we bind ourselves and our heirs to execute to them or their assigns a lease for said timber for the term of ten years and the privileges before named." The plaintiff paid $410 within 10 days after the date of the contract, making with the amount ($90) formerly paid the sum of $500 paid in all, and leaving a balance of $1,500 to be paid within the five years. Within the said time the plaintiff tendered to the defendants the said balance ($1,500), but accompanied the tender of the money with a demand that defendants execute to the plaintiff a conveyance of the timber, which the plaintiff had caused to be prepared and then offered to the defendants for execution, and which agreed in its terms with the contract, except that it described the timber conveyed or leased as measuring "12 inches or more" at the stump 18 inches above the ground when cut, whereas in the contract only the words "12 inches" are used; the words "or more" having been inserted in consequence of information received by the plaintiff that the defendants had insisted that it could not cut under the contract any timber measuring more than 12 inches. The defendants refused to receive the money and execute the conveyance, because it was not drawn according to the exact terms of the agreement. Some time thereafter and within the five years the defendants prepared and executed a deed in accordance with the terms of the contract; that is by describing the measurement of the trees sold as "12 inches at the stump 18 inches above the ground when cut." This deed was tendered to the plaintiff and the payment of the balance of the purchase money demanded. Plaintiff refused to execute the deed or to pay the balance of the purchase money unless the defendant would execute the deed it had tendered, as the defendants still insisted that plaintiff had no right, under the contract, to cut timber measuring more than 12 inches. About four months after the expiration of the five years, the plaintiff brought this suit to compel the defendants to specifically perform the contract. It also alleged in its complaint that the oral agreement between the parties was that it should have the right to cut all trees measuring 12 inches or more at the stump, and prayed that, if the contract did not so express the agreement, it be reformed. Pending this action, the plaintiff notified the defendants that it would cut the timber measuring 12 inches or more. Defendants then commenced an action to enjoin the alleged trespass and obtained a restraining order. The two actions, by consent of the parties and the order of the court, were consolidated and heard as one upon the pleadings admissions, and exhibits, from which the foregoing facts are taken. The court adjudged that the plaintiff, the Dennis Simmons Lumber Company, acquired an interest in the lands described in the pleadings under the contract of November 8, 1899, to the extent of all the pine timber that will measure 12 inches at the stump 18 inches from the ground when cut, together with the other rights and privileges mentioned in the same, for a period of 10 years from the said date, and that said plaintiff is entitled to have a deed therefor, and the defendants were thereupon ordered to execute such a deed, and, in default of their doing so, that the decree or judgment of the court should have the effect of conveying and transferring the said title and rights, as though the conveyance had been duly executed, in accordance with the provisions of the statute. The court then in its judgment dissolved the restraining order and refused to grant an injunction, and it further adjudged that the plaintiff, the lumber company, was entitled, under the contract and the deed ordered to be made in pursuance thereof, to cut all timber on the said land measuring 12 inches or more in diameter at the stump 18 inches from the ground when cut during the said period of 10 years. Defendants Joseph Corey and wife excepted and appealed.

Ward & Grimes, S. A. Newell, and F. D. Winston, for appellants.

Stubbs, Gilliam & Martin, for appellee.

WALKER J. (after stating the case).

The real, and indeed the vital, question in this case is to be found in the ruling of the court that by the contract between the parties the plaintiff acquired such an estate in the land as entitled it to cut all the pine timber measuring 12 inches and upwards in diameter at the stump 18 inches above the ground when cut, and in furtherance thereof to enjoy the rights and privileges given by the contract, such as entering upon the land, building tramways, and using the undergrowth for the purpose of construction, provided the right to cut and the other rights and privileges shall not last beyond 10 years from the date of the contract. There was another question raised by the defendants, namely, that the instrument of November 8, 1899, contained only an option to buy, and that the plaintiff had lost all right thereunder to call for the title or to cut the timber and exercise the rights and privileges mentioned therein by not paying the balance of the purchase money within 5 years from the date thereof. These propositions we will consider, though not in the order stated.

This court has so recently and so fully considered the question as to the true construction of contracts substantially like the one now under review that it would seem almost useless for us to add anything to what has already been said. We have decided that such contracts, which should be treated as in effect conveyances, pass a present estate in the timber defeasible as to all timber not cut within the limit of time fixed by the parties in their agreement. That this is the true construction, as settled by the best-considered cases, was clearly indicated in Bunch v. Lumber Co., 134 N.C. 116, 46 S.E. 24, though it was not thought necessary in that case to finally and conclusively adopt it, or to determine what is the exact nature of such contracts, as we were able to dispose of the case upon other grounds without deciding that matter. After reviewing some of the authorities in the other states, which were arrayed on opposite sides of the...