Fletcher v. Lyon

• Decision Date: 20 December 1909
• Citation: 123 S.W. 801,93 Ark. 5
• Parties: FLETCHER v. LYON
• Court: Arkansas Supreme Court

123 S.W. 801

93 Ark. 5

FLETCHER v. LYON

Supreme Court of Arkansas

December 20, 1909

Appeal from Woodruff Chancery Court; Edward D. Robertson Chancellor; affirmed.

Decree affirmed.

J. F Summers, for appellants.

No time being mentioned for cutting and removing the timber, the vendee should be held to have a reasonable time. 77 Ark. 16. The words "any time" were used in a restricted sense. 66 Ark. 472; 145 Mass. 156. It means a reasonable time. 77 Ark. 116; 164 Pa. 234; 128 N.C. 46; 78 Ark. 408.

Harry M. Woods, for appellee.

The effect of the reservation and agreement to reconvey are not to nullify the grant of the fee. 82 Ark. 210; 93 S.W. 979. The title passes independent of these covenants. 44 Ark. 160. The intention of the parties should be gathered from the deed as a whole. 53 Ark. 185. Persons dealing with a special agent must know his authority. 23 Ark. 411; 74 Ark. 561; 62 Ark 33; 78 Ark. 30. Appellants cannot be heard to say that they relied upon an agreement not embraced in the instrument. 15 Ark. 542; 24 Ark. 210; 33 Ark. 150. A reasonable time for removing the timber had not elapsed. 91 S.W. 53. The words "at any time" mean an indefinite or unlimited time. 70 Ark. 122; 10 L. R. A. 217; 44 Ill.App. 376. An estate in the timber was created by this deed. 77 Ark. 120; 98 S.W 238.

OPINION

MCCULLOCH, C. J.

There are two cases here between the same adversary parties, each involving the construction of a separate instrument of writing, and each action was instituted by B. A. Fletcher and T. M. Fletcher against Thomas R. Lyon; but each controversy grows out of the same transaction, and they are so interwoven that both cases can, and should for convenience, be disposed of in one opinion.

Pursuant to prior negotiations, on May 11, 1900, the plaintiffs executed and delivered three deeds of conveyance to Thomas R. Lyon. By the first deed plaintiffs conveyed to said Lyon in fee simple about six thousand acres of timber lands in Woodruff County, Arkansas, for a cash consideration of $ 18,500. These lands contained between sixty-six and sixty-seven million feet of timber.

The second deed, executed by plaintiffs to Lyon for a cash consideration of $ 800, is as follows (omitting formal parts):

The grantors "do hereby grant, bargain, sell and convey unto the said Thomas R. Lyon, and unto his heirs and assigns forever, the following lands lying in the county of Woodruff and State of Arkansas, towit: (Here lands are described), containing 372 acres.

"The grantors reserving the right to use for grazing or farm purposes the surface of so much of said premises as the said grantee shall not desire to use in connection with any lumber manufacturing, lumbering or logging operations which he may wish to conduct over or upon said premises, or any part thereof; it being understood, however, that said grantee shall in no way be responsible for any damage which may occur on said premises to any property belonging to said grantors.

"It is also understood and agreed that whenever and as soon as said grantee shall have removed all the timber and all the products thereof from the lands described in this deed, and from all other lands (in which lands or the timber thereon the said grantee may now or at any time be interested) in said county or in any adjoining county bought by him from said grantors, or others, and shall have finished all his manufacturing, shipping and other lumbering and logging operations over or upon the same, and shall have removed any tram road or railroad which he may have built thereon, and shall have permanently ceased the operation, for himself or others, of any mill plant he may have erected on said premises, and shall have permanently dismantled and removed such mill plant, then the said grantee shall reconvey by deed to said grantors the said premises herein described.

"At the time of the reconveyance by said grantee as above provided the said premises shall be free and clear of all liens and incumbrances created or suffered by said grantee.

"To have and to hold the same unto the said Thomas R. Lyon and unto his heirs and assigns forever, with all appurtenances thereunto belonging. * * *

"And we hereby covenant with said Thomas R. Lyon that we will forever warrant and defend the title to the said lands against all claims whatever."

This conveyance is referred to in the abstract and briefs as the "mill-site" deed, and it will be thus hereinafter designated for convenience. The lands described in this deed contained about one and one-half million feet of timber.

The third deed executed by plaintiffs to Lyon, for a cash consideration of $ 500, is as follows (omitting formal parts): The grantors "do hereby grant, bargain, sell and convey unto the said Thomas R. Lyon, and unto his heirs and assigns forever, all the timber, standing or fallen, with the right to cut and remove the same at any time, upon the following lands: (Here follows description of lands), containing 185 acres.

"In further consideration of the above purchase price, the grantors herein hereby convey to said grantee the right and privilege to cross and recross the lands herein described for the purpose of conducting any and all logging and lumbering operations upon the lands herein described, or to cross and to recross the lands herein described for the purpose of conducting any and all logging and lumbering operations on or to and over any other lands, in which lands and the timber thereon the said grantee may now or at any time be interested. To have and to hold the same unto the said Thomas R. Lyon and unto his heirs and assigns forever."

This deed will be hereinafter referred to for convenience as the timber deed, and the lands described therein contained something over 1,000,000 feet of timber. All three of these deeds contained about 69,000,000 feet of timber, and all of them were executed at the same time as a part of the same transaction, and they resulted from the same negotiations.

On December 21, 1900, pursuant to prior negotiations pending at the time of executing the former deeds, plaintiffs for a cash consideration of $ 21,000 executed to Thomas R. Lyon another deed conveying in fee simple about seven thousand acres of timber lands, which are shown to contain about 61,000,000 feet of timber. It will be thus seen that all of the timber purchased by Lyon from plaintiffs amounted to about 130,000,000 feet.

Plaintiffs simultaneously instituted the present actions in the chancery court of Woodruff County against Thomas R. Lyon on March 31 1908, seeking in one action to cancel the mill-site deed and in the other to cancel the timber deed. Defendant, Thomas R. Lyon, died while the actions were pending in the chancery court, and they were both revived in the name of the three executors and trustees mentioned in his will. In each case the plaintiffs contended that the rights of defendant to cut or remove timber had expired. The cases were heard separately below, and in each the court found from the evidence that "a reasonable time has not...