Finkbine Lumber Co. v. Saucier

• Citation: 116 So. 736,150 Miss. 446
• Decision Date: 23 April 1928
• Docket Number: 27105
• Court: Mississippi Supreme Court
• Parties: FINKBINE LUMBER CO. v. SAUCIER et al. [*]

116 So. 736

150 Miss. 446

FINKBINE LUMBER CO. v. SAUCIER et al. ^[*]

No. 27105

Supreme Court of Mississippi

April 23, 1928

Division A

APPEAL from chancery court of Pearl River county, HON. T. P. DALE Chancellor.

Suit by Eli Saucier and others against the Finkbine Lumber Company. Defendant's demurrer was overruled, and defendant appeals. Affirmed and remanded with leave to answer.

Affirmed and remanded.

U. B. Parker, for appellant.

A decision in this case involves a construction of the deed from appellees to Laurence Ladner. It must be kept in view that prior thereto appellees had sold the timber outright and gave the appellant's predecessor in title twenty years in which to cut and remove the same, and both the purchaser and the seller had every reason to believe that appellant would exercise its right to remove the timber within that time. The attempted reservation was made by appellee for the purpose of protecting himself against a breach of warranty. If no mention had been made of the timber in this deed, the warranty would have been broken, because the timber standing thereon was a part of the land; and a plain warranty deed without any mention, would have warranted the title to both land and timber. Saucier knew he had sold the timber, and for that reason the wording of his deed indicates that the timber was not included in the deed. It was not reserved to him, but was reserved from the deed. All the pine timber was sold and not a part of it. On June 30, 1915, when Eli Saucier made the conveyance to Laurence Ladner, he did not own one foot of the timber. He had absolutely no title to the timber. He owned the dirt and that ownership carried with it the right to have such of the timber as was not cut within the time limit revert to him, as the owner of the fee. Saucier did not own the timber and could not reserve the same. It was not his to reserve, as is amply stated in one of the decisions hereafter cited. He owned a reversionary interest in the timber, but he owned this by reason of his ownership of the land, and, had it been desired that such of the timber, as was not cut by defendants at the end of the twenty years, should revert to him and not to his grantor, he should have reserved such an interest in the land and the timber on the right to have the timber revert to him and the right to have the land burdened with such timber, as reverted to him at the end of twenty years; any ambiguity or doubt is to be resolved in favor of the grantee. A reservation in favor of a grantor is to be construed more strictly than a grant. In Barataria Canning Company v. Ott, 84 Miss. 737, it is stated: "In order for a reservation in a deed to be operative it must withhold from the grant something which would have passed by the deed, but for the reservation."

In Wilson v. Buffalo Colleries Co., 91 S.E. 449, the supreme court of West Virginia, in discussing a reservation attempted to be made in a deed conveying the fee, said "That Mrs. Deskins reserved nothing to herself by the clause in her deed to Vicie Collins above quoted is perfectly obvious. Though she used the word "reservation" the context clearly proves she merely meant to except from the operation of the deed the right she had granted away. Things she had parted with and could not reserve constituted the subject-matter of her language. It being logically and physically impossible to reserve them, she must have intended by what she said to except them and nothing more, for the terms of the clause do not extend beyond them in any sense. But she excepted what she had conveyed to Wilson, the title to the standing timber eighteen inches and over in diameter.

Plaintiffs in the court below presented the case of Walters v. Sheffield, 78 So. 539. Without a very close reading of this case, it might be thought that the rule of law announced is adverse to appellant. In that case the specific reservation made in the deed construed following the description of land, is as follows: "The said parties of the first part reserve unto themselves, and from the operation of this deed all the timber of any kind and nature, standing on said land, together with all of the tenements, hereditaments and appurtenances with every privilege, right, title, interest and estate, dower and right of dower reversion, remainder and easement thereto belonging or in anywise appertaining thereto and to hold the same in fee simple forever." This case in stating that "trees growing or standing upon land are not distinguishable in their character of real estate from the soil itself until they are actually severed from the soil," cites as its sole authority Mississippi cases. They also relied on Stewart v. Herring, 138 Miss. 719. This case is not in point. We think the case supports defendants' contention. This Mississippi case and Wilson v. Buffalo Colleries Company, supra, absolutely settle the question that Saucier could not at the time of his conveyance in 1915 reserve the timber. In Sutton v. Gray Lbr. Co., 60 S.E. 2, the Georgia supreme court had before it the question of a reservation in a deed to land where the timber had been previously sold, with a right to cut within five years, which deed contained a clause following the description of the land--"The saw mill timber heretofore sold to Henry Banks excepted." "Held, that the timber on the described land, not cut within the five years, did not revert at the expiration of the time limit to Sutton or his heirs (the timber only), but became the property of the then owner of the land."

Complainant relied upon the case of Levis v. Parrot, 46 S.E 647. In the Levis case the timber deed provided that all timber remaining on said land after the expiration of five years would revert to the grantor. In International Lumber Company v. Straude, 175 N.W. 909, the Minnesota supreme court had under consideration a conveyance of land, on which the timber had previously been conveyed with fifteen years in which to cut and remove, and it said that the grantor in such deed had a contingent reversionary interest in the timber which he might convey or reserve to himself in a deed of the land subsequently executed. The supreme court of our state in the 84th Miss. 757, supra, plainly stated that, "A reservation in a deed must necessarily be of something which belongs to the grantor at and before the execution of the deed." In Derr Creek Lumber Co. et al. v. Sheets, 83 S.E. 81, the supreme court of West Virginia construing a supposed reservation in a deed where the timber had previously been sold with five years to cut and remove which time had not then expired says, "that Ervin and his wife held the right of reversion before they conveyed to Sheets cannot be gainsaid. Did they by their deed to Sheets withhold unto themselves that right of reversion, or did it pass to Sheets by their deed? If they withheld the right, the assignment made to the lumber company by Ervin passes his interest therein, but not the whole interest which plaintiffs claim through it. If they did not withhold the right of reversion, it passed with the land to Sheets." In Hornthal et al. v. Howcott et al., 70 S.E. 171, the North Carolina court had under consideration a deed where an owner conveyed the timber on his land, not less than eleven inches on the stump when cut, with the right to cut and remove the same within four years. Before the expiration of the four years, he conveyed the land to a grantee by a deed stipulating, "The timber having been previously sold to John L. Roper Lumber Company, and is excepted from this deed." Held, "That the deed conveyed to the grantee all the land and all the timber thereon not cut and removed within the specified time." In the supposed reservation under construction Saucier did not reserve the timber unto himself. It was merely "reserved from this deed." Why did he reserve it from this deed? Because he did not own it. Because he had previously sold it. Because it was necessary to withhold the timber from the deed to protect his warranty. They were not dealing with the timber. They were dealing with the land on which the timber had previously been sold. In Shannonhouse et al. v. Shannonhouse et al., 84 S.E. 259, the court had under construction a deed where the timber was sold with five years in which to cut it, and an extension of three years upon the annual payment of six per cent on the price, the interest to belong to the original owner and not to any purchaser, and the purchaser of the timber afterwards bought the land. This case cites the Hornthal case, supra. Also, cites Bateman v. B. Lumber Company, 70 S.E. 474, 34 L. R. A. (N. S.) 615, and says, "applying these principles, if the timber should not be cut within five years, it would then belong absolutely to the defendants, as purchasers of the land, and they could cut it when they wished to do so. In other words, when the defendants bought the land, they, also, bought the right to extend the time for cutting and the latter was merged in the title to the land, and therefore, no interest can become due." In Brodack et ux. v. Morsbach et al., 80 P. 275, the Washington supreme court had under construction a timber deed and the rights of purchasers of the land on which such timber stood and it is said that, "purchasers of land, with full knowledge of a prior contract for the sale of timber growing thereon, acquired no interest in the timber, except the right to have it revert to them in case it was not removed under the contract of sale." In French v. Sparrow Kroll Lumber Co., 97 N.W. 961, the Michigan supreme court announces the law applicable to this case in the following words: "An owner of land who has sold timber thereon, giving the purchaser a stated time in which to remove the same, who subsequently...