Dill-cramer-truitt Corp. v. Reynolds

• Decision Date: 24 October 1923
• Docket Number: (No. 217.)
• Citation: 119 S.E. 376,186 N.C. 292
• Court: North Carolina Supreme Court
• Parties: DILL-CRAMER-TRUITT CORPORATION. v. REYNOLDS et al.

119 S.E. 376

(186 N. C. 292)

DILL-CRAMER-TRUITT CORPORATION.

v.REYNOLDS et al.

(No. 217.)

Supreme Court of North Carolina.

Oct. 24, 1923.

Appeal from Superior Court, Onslow County; Calvert, Judge.

Action by the Dill-Cramer-Truitt Corporation against G. D. B. Reynolds and others. Judgment for defendants, and plaintiff appeals. Reversed.

Civil action to enforce specifically extension provisions contained in a timber deed authorizing and conveying the right to cut timber for a given number of years with the right of extension, etc. A jury trial was waived, and, upon the facts found by his honor, by consent, acting as judge and jury, judgment was entered in favor of the defendants. Plaintiff appealed.

I. M. Bailey, of Jacksonville, and McLean, Varser, McLean & Stacy, of Lumberton, for appellant.

H. P. Seawell, of Carthage, for appellees.

STACY, J. The essential facts of this case are as follows:

(1) On August 9, 1905, Elijah Hardison and others conveyed to Jesse Lukens, by deed in proper form and duly registered, a quantity of timber situate in Onslow county, together with certain timber rights and privileges, as contained in the following pertinent provisions of said deed:

"And the said parties of the first part hereby grant and assure unto the said party of the second part, his heirs, executors, administrators and assigns, a term of ten years from this date, subject to the right of extension, hereinafter provided for, within which to cut and remove the timber conveyed. * * *

"And the parties of the first part hereby contract and agree to extend the time within which the party of the second part, his heirs, executors, administrators and assigns, shall have to cut and remove the said timber from the said lands after the expiration of the term hereinbefore specified for removal thereof from year to year for a period of ten years, said extension to be yearly upon the request of the party of the second part, its successors and assigns, the party of the second part, its successors and assigns to pay the parties of the first part the sum of $72 upon each yearly extension of said time."

(2) Thereafter, on February 28, 1907, Jesse Lukens and wife, for value, conveyed all their rights under this deed to the plaintiff, which conveyance was duly registered March 19, 1907.

(3) Subsequent to the execution of the aforementioned deed from Hardison to Lukens, M. L. Parker acquired the fee-simple title to the land, on which this timber stands, without any reservation as to the timber or timber rights appearing in his deed, and this deed was duly registered August 2, 1916.

(4) Prior to August 9, 1915 (the expiration of the first term of ton years given in the Hardison-Lukens deed), the plaintiff, being then the owner of the timber as grantee of Lukens, paid to the then owners of the land $72 for one year's extension to cut said timber, took a receipt therefor, and had the same registered. And again, prior to August 9, 1916 (the expiration of the first year's extension), plaintiff paid to the then owners of the land $216 for three years' extension to cut said timber, took a receipt therefor, and had the same registered.

(5) Prior to August 9, 1919 (the expiration of the fourth year's extension) plaintiff paid to M: L. Parker and J. C. Parker, the then owners of the land (each owning separate portions as individuals) the sum of $216, the price of three years' extension under the Hardison-Lukens deed, took a receipt therefor in due form, but the same was not registered, as was the case with the two former receipts.

(6) Thereafter, on November 19, 1920, the defendants, G. D. B. Reynolds, Mike Parker, and Arnold Parker, purchased in fee simple the land covered by the Hardison-Lukens timber deed, except a small portion thereof not material to the present inquiry.

(7) Prior to August 9, 1922 (the expiration of the seventh year's extension), plaintiff tendered to Reynolds, Mike Parker, and Arnold Parker, the then owners of the land, $216, the price of the remaining three years extension under the Hardison-Lukens deed, which tender was refused.

(8) The plaintiff has cut none of the timber covered by the conveyances mentioned in the present record.

(9) It further appears as a fact that G. D. B. Reynolds, Mike Parker, and Arnold Parker had no actual notice of the unregistered extension receipt at the time they acquired title to the property, November 19, 1920.

Upon the foregoing facts the court concluded that, inasmuch as the plaintiff had failed to register the receipt for $216, paid immediately prior to August 9, 1919, and given for three years' extension from that date, the plaintiff was not entitled to the relief sought, and not entitled to the last three years' extension under the Hardison-Lukens deed, beginning August 9, 1922, and running to August 9, 1925. Hence the question squarely presented by his honor's ruling is whether or not the third extension receipt, above mentioned, should have been registered in order to be...