Forman v. G. D. Holloway & Son

Decision Date21 February 1916
Docket Number(No. 190.)
Citation183 S.W. 763
PartiesFORMAN et al. v. G. D. HOLLOWAY & SON et al.
CourtArkansas Supreme Court

Appeal from White Chancery Court; Jno. E. Martineau, Chancellor.

Suit by George M. Forman and others against G. D. Holloway & Son and others. Decree for plaintiffs for partial relief, and they appeal. Affirmed.

One J. D. Tevis borrowed from George M. Forman $2,600, executing his promissory note therefor and a deed of trust to secure the same on certain lands. Tevis having failed to pay the money when due, this suit was instituted on the note and to foreclose the deed of trust. Judgment was entered against Tevis, and, it appearing that during the life of the mortgage G. D. Holloway & Son had purchased certain timber that had been cut by other parties from the land without the consent of the trustee or Forman, the beneficiary, Holloway & Son and others were made defendants, and judgment was asked against them for the value of the timber so cut and removed.

The undisputed testimony showed that Tevis, the mortgagor, was in possession of the land, and had authorized his agents, Pence & Adams, to sell the timber on the land. These agents sold the timber to one Peterson, who cut the same into sawlogs, and hauled the logs to the mill of appellees, and sold the same to appellees at the rate of $6.25 per 1,000 for red oak, and $7.50 per 1,000 for white oak. The court deducted $4.25 per 1,000, this amount representing the cost of cutting and hauling the timber to the mill, and rendered judgment in favor of appellants for the sum of $160.93, that amount representing the value of the timber as it stood in the woods. Appellants duly prosecute this appeal.

Brundidge & Neelly, of Searcy, for appellants. Rachels & Miller, of Searcy, for appellees.

WOOD, J. (after stating the facts as above).

Appellants contend that instead of $160.93, the value of the standing timber in the woods, judgment should have been rendered in their favor for the sum of $368.75, the latter sum being the value of the timber at the mill of appellees, which amount was made up of the value of the timber in the woods, plus the cost of cutting and hauling the same to the mill.

To support this contention appellants rely upon the case of Griffith v. Ayer-Lord Tie Co., 109 Ark. 223, 159 S. W. 218. In that case the appellee, the Ayer-Lord Tie Company, claimed under an instrument which the court construed to be a deed conveying to the tie company the absolute title to the timber, for which the company sued Griffith, setting up that the timber had been cut from the land and manufactured into cross-ties and sold to the defendant Griffith, and that all this was done without any right or authority, and amounted to a conversion by the parties concerned of the company's property. The suit as finally settled was at law for the value of the timber at the time Griffith purchased same. It was shown that Griffith bought the cross-ties, not knowing that the tie company had any interest therein. We said:

"The correctness of the judgment turns upon the question of whether or not the instrument in evidence was a deed to appellee, creating an absolute title in it to the cross-ties in controversy, or whether or not it was intended as a deed to Lefler with a mortgage back to appellee creating a lien in its favor...

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