Gex v. Dill

• Citation: 38 So. 193,86 Miss. 10
• Court: United States State Supreme Court of Mississippi
• Decision Date: 03 April 1905
• Parties: MARIE V. GEX v. WILLIAM A. DILL ET AL

38 So. 193

86 Miss. 10

MARIE V. GEX v. WILLIAM A. DILL ET AL

Supreme Court of Mississippi

April 3, 1905

FROM the chancery court of Hancock county, HON. STONE DEAVOURS Chancellor.

Mrs Gex, the appellant, was complainant in the court below; Dill and others, appellees, were defendants there. From a decree in defendants' favor, the complainant appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed.

Harper & Harper, for appellant.

So far as concerns description, the case is wholly within the decisions of Raines v. Baird, 84 Miss. 807; Kyle v Rhodes, 71 Miss. 491.

The instrument is nothing more nor less than a mere license, an executory license; an authority to the grantees and their assigns to enter upon the lands described in said license at their pleasure; to extract turpentine and scrape rosin from the pine trees on said lands; and that their term was to be three years--no more, no less--from the time they began to box the trees on the different parts of this land for the purpose of extracting the sap for turpentine. This license was not only executory, but it was not coupled with an interest. No money was to be paid till after the boxing was commenced and the term of three years begun; so it will be readily seen that the license was revokable at the pleasure of the grantor, Roderick Seal, or at the will of the grantees or their assigns, and would or could be terminated by the death of either party, provided such death occurred before the license had been executed, either in part or Whole, as no value had been paid to the grantor under the terms of the license. There was no power in any court, chancery or other to enforce on the part of the grantor under the terms of the grant a compliance by the grantees with the terms of the license, as it was what is technically termed a unilateral contract.

Roderick Seal, the grantor, departed this life in September, A. D. 1899, and such death terminated the license, for the reason that there had been up to this date no execution of the terms, no investment of money in the business, and no vested interest established. The appellant was informed that the grantees had of their own accord advanced a very small sum, amount not known, but believed to be about three hundred and fifty dollars, which had been accepted by Mr. Seal as a voluntary advancement, and the appellant tendered this amount with the bill, not as a legal right or duty, but as a matter of conscience and equity to the appellees.

We call attention of the court to the following cases: Prince v. Cas, and Renck v. Kern, reported in vol. 2 Am. L. Cas., p. 687, in which this question is thoroughly discussed.

This instrument, no matter about the forms of expression, is in fact and in substance a mere license, and in no sense a lease for a term of years, as will be seen by an examination of the authorities. The time of beginning and a certain time of terminating are essential to a good lease for a term of years. Manufacturing Co. v. Hobbs, 83 Am. St. Rep., 661; Western Transportation Co. v. Lansing, 49 N.Y. 508; Abell v. Radcliff, 7 Am. Dec., 377; Preston on Conveyances, 159; Martindale on Conveyances, 271, sec. 322.

W. J. Gex, on the same side.

If the failure to designate the county and state in the lease was a patent ambiguity, the lease was void, for reasons well established in law, and plaintiff's petition should have been sustained and the relief she prayed for granted. Bowers v. Andrews, 52 Miss. 596; Haughton v. Startor, 71 Miss. 357.

If the failure to designate the county and state in the lease was a latent ambiguity, then, because defendant introduced no evidence to explain said ambiguity, and objection to the introduction of the lease at the trial was made, the petition of the plaintiff should have been sustained and the relief prayed for granted. Hanna v. Renfro, 32 Miss. 125.

The written instrument purporting to be a lease was, in fact, not a lease, because it lacked the essential element of a lease--to wit, that it should have a certain duration, a certain beginning and ending. Greenleaf's Cruise on Real Property, vol. 4, p. 8; Taylor's Landlord and Tenant, vol. 1, par. 70, p. 93, and same work, sec. 75.

The identical question was fully considered and properly passed upon in the case of Manufacturing Company v. Hobbs, 128 N.C. 46 (38 S.E. 26; 83 Am. St. Rep., 661), to which decision we would most particularly call this court's attention, as it is a case on all fours with the one at bar.

Appellees would have this court to interpret the contract or pretended lease to mean that they should have a reasonable time in which to begin gathering and removing the turpentine from the trees on the lands; but to do that this court would have to make a new contract for the parties, there being no ambiguity in the terms of the pretended contract from which to reach that conclusion. On this question the court's attention is invited to the case of Abell v. Radcliff, 7 Am. Dec., 377 (13 John., 297).

Green & Green, and Ford & White, for appellees.

Let counsel, explain what passed under the grant in these words: "This indenture . . . witnesseth: That the said party of the first part . . . has granted, bargained, leased, and conveyed, and does by these presents grant, bargain, lease, and convey, unto the said party of the second part, their heirs and assigns, at the rate of six dollars per one thousand boxes, all of the timber upon the following described tract of land, for the purpose of boxing, working, and using said timber for turpentine purposes" (describing the same according to the land numbers), "to have and to hold, box, work, and use said timber for turpentine purposes, unto the said party of the second part, their heirs and assigns." These are the words of grant; by them something passed from the one party to the other, and it was an interest in the land sufficient to support this defense that is here made. Fox v. Lumber Co., 80 Miss. 6.

Appellant's counsel entirely overlooked the fundamental rule of law that no man can derogate from his own grant, and the further elementary principle that when a grant is made by the owner of the whole estate, everything that is essential to the enjoyment of that part granted passes under it as an incident. Carson v. Lumber Co., 69 S.W. (Tenn., 1902), 321; White v. Foster, 102 Mass. 379; Mathews v. Mulvey, 38 Minn. 344; Boults v. Mitchell, 15 Pa. 379; Wheeler v. Carpenter, 107 Pa. 271; Heflin v. Brigham, 56 Ala. 566; Howe v. Batchelder, 49 N.H. 208; Gilmore v. Wilbon, 12 Pick., 120; Weit v. Baldwin, 60 Mich. 626; Wood v. Ledbetter, 13 Mees. & W., 844; Thomas v. Lovel, Vaughn, 330, 331; Huritt v. Isham, 7 Exch., 75; Pierrpont v. Narnard, 6 N.Y. 279.

The learned counsel says correctly that the lease must have a certain beginning and a certain ending. That is certainly correct. But under, the instrument in the instant case the interest in the lands for the purpose of working, boxing, and using them vested upon the execution of the lease. The operative words therein are in praesenti, and not in futuro. It recites that the party of the first part "has granted, bargained, leased, and conveyed, and does by these presents grant, bargain, and convey unto the said party of the second part, their heirs and assigns, all of the timber upon the following described tract of land for the purpose of boxing, working, and using said timber for turpentine purposes, . . . to have and to hold, box, and use said timber for turpentine purposes, unto the party of the second part, their heirs and assigns."

The estate passed upon the execution of the deed, and it passed a present interest and estate in the land because the grantees did not contemplate cutting the trees from the soil, converting them into personalty, but the intention was that they should be used as such, as growing trees they could not be made available for turpentine in any other manner, and under the decisions an interest in the realty passed whereby the grantee was entitled to have the trees remain upon the soil and draw sustenance from it. Let the court distinguish the case of a sale of the trees as such, as part of the realty, from the sale of the trees with the intention of immediate severance. It is to be noted that the commencement of the lease was certain--i, e., that not the time of the making of the deed, but the time of the termination of the term of enjoyment, was to be made certain by the happening of an event--i, e., three years after the party of the second part should desire to commence to work the trees for turpentine purposes. The lease in its verbiage is similar to the one construed in Mathews v. Mulvey, 38 Minn. 344, wherein the termination of the right to take the timber was made to depend upon a condition precisely similar to that in the case at bar, and it was there construed as a condition subsequent and as defeating an estate that has vested under the words in the granting clause, and it was further held, under the universal rule, that being a condition subsequent, it must be strictly construed to prevent forfeiture.

The true interpretation of the instrument in the instant case is that an estate in the realty vested by the granting and the habendum clause of the deed in praesenti for the purposes therein specified, and the end of the lease was to be ascertained by the happening of a certain condition--i, e.. the expression of the desire of the appellees to remove the turpentine, and their beginning so to do--and after this the estate was to terminate at the end of three years. The estate vested was in realty itself and passed under the grant.

This was in 1899-1900, before the appellant acquired any title whatever, and at that period the owner under whom this...