Gilford v. Ward Rue Lumber Co.

• Decision Date: 16 December 1936
• Citation: 17 F. Supp. 431
• Parties: GILFORD et al. v. WARD RUE LUMBER CO. et al.
• Court: U.S. District Court — Western District of Virginia

17 F. Supp. 431

GILFORD et al. v. WARD RUE LUMBER CO. et al.

District Court, W. D. Virginia, At Harrisonburg.

December 16, 1936.

Peyton Randolph Harris, of New York City, and George S. Aldhizer, II, of Harrisonburg, Va., for plaintiffs.

Chapman & Morris, of Standardsville, Va., for defendants.

JOHN PAUL, District Judge.

The plaintiffs here are the executors and trustee under the will of John P. Gilford, deceased, together with others who are apparently the heirs at law of John P. Gilford. The bill of complaint alleged in substance that John P. Gilford, at the time of his death, was the owner in fee simple of a tract of 570 acres of land in Greene county, Va., and that, since the death of John P. Gilford, the plaintiffs have been and are now the owners of said land; that the land is covered with a heavy growth of valuable mechantable timber, and that in July, 1936, the defendants, without consent or permission of the plaintiffs, entered upon said land and wrongfully and lawlessly began to cut said timber and remove it from the land; that the defendants have cut and removed a large quantity of the timber and will cut and remove the balance thereof to the great loss and damage of the plaintiffs unless restrained. The bill prays that the defendants be permanently enjoined from entering on the premises or asserting any claim thereto and for an accounting as to all timber heretofore cut or removed. There was also a prayer for a temporary injunction pending the final determination of the cause and, notice of a motion for such temporary injunction having been given, an order was entered granting a temporary injunction and fixing a day for a hearing upon the merits.

Thereafter the defendants filed their answer and upon the issues raised certain evidence has been taken. From the bill, the answer, the exhibits filed, and the evidence taken, the following facts appear:

On August 17, 1916, one Morris D. Brown was the owner of the 570 acres and by a deed of that date he and his wife, Olive Lejeune Brown, sold and conveyed to David Jameson, trustee, for $3,500 cash, "all of the timber of every kind and character" on the land with rights of ingress and egress for removal of the same. The deed provided that the grantee, his successors, or assigns should have twenty years from the date of the deed within which to exercise the right of removal of the timber with the further right of extending the period of removal for not exceeding five years longer provided the grantee would pay to the grantors, their legal representatives, or assigns, the sum of $210 per year for each year of such additional five-year period as they might desire to exercise the rights granted. In other words, if the purchaser of the timber had not removed it within twenty years and desired an additional period within which to remove it, he might have such additional time not exceeding five years on condition that he paid $210 a year for each year of such extended period as he utilized. It will be noted that $210 represents 6 per cent. on the purchase price. I find that this provision whereby purchasers of timber with a limited period for removal may extend the period for such removal for a further period of years by paying interest on the purchase price during the extended period is a very common one in deeds for the sale of timber in this and adjoining states; and its effect has been often construed.

The deed from Brown further provided that at the expiration of the rights granted the purchaser of the timber for its removal, either at the end of twenty years if no extension was effected or at the end of any extension granted, all timber, logs, lumber, etc., growing or cut that remained on the premises should "revert to and become the property of the parties of the first part, their heirs, executors or assigns."

By proper mesne conveyances the timber passed from Jameson, trustee, to defendants, who acquired it together with other timber tracts by deed from the West Virginia Timber Company, dated February 10, 1926. All of the intervening deeds make reference to and preserve the right of removal of the timber as set out in the original deeds conveying the timber, the language being, "the time within which said rights can be availed of and said timber removed and all other conditions relating thereto to be the same held by grantors by virtue of their deeds and contracts with the owners of the lands whereon said timber is growing."

Some years later, in January, 1926, Brown and his wife conveyed the 570 acres of land to John P. Gilford by an instrument which appears to be a mortgage to secure a debt, it being expressly stated therein that "this mortgage shall not include any standing timber now on said land." And by deed dated May 24, 1928, the Browns conveyed the absolute fee-simple title to the land to John P. Gilford, the deed containing this provision: "It being understood and agreed that all timber rights in and to said property, and the right to enter for the purpose of removing same, is hereby reserved to the parties hereto of the first part." For some years, possibly before the conveyance of the fee in the land to Gilford, Brown has not been living in Greene county.

After acquiring the timber, the defendants cut and removed portions of it from time to time, but considerable of it remained standing as the end of the twenty-year period of removal approached. The defendants desiring to exercise their right for an extension of time, inquired of the treasurer of the county to learn the name of the present owner of the fee in the land and were informed that the land was assessed in the name of John P. Gilford's estate and that the legal representative of that estate was the City Bank Farmers Trust Company of New York City. Thereupon the defendants, on August 6, 1936, approximately two weeks prior to the expiration of the twenty-year period, addressed and mailed to the City Bank Farmers Trust Company at its proper address in New York City a letter referring to the right of extension given in their deed to the timber, stating that they wished to exercise this right and inclosing a check for $210, the amount of the yearly payment for such extension. By a letter dated August 11, 1936, the City Bank Farmers Trust Company (which is one of the executors of Gilford and one of the plaintiffs here) returned the check to the defendant with the rather indefinite statement that, "From our investigation to date, we are unable to determine that we should receive or retain the check which you forwarded and are herewith returning the same." The defendant, not unnaturally, construed the quoted letter as indicating a lack of knowledge of the provisions of the deed to the timber and of the rights created thereunder, and on August 13, 1936, wrote again to the trust company, quoting at length from the provisions of the deed and advising that the check would be held "until we hear further from you in the matter" and that "we will return you the check for $210.00 any time you advise." To this letter no reply was made. Thereafter the defendants, not then knowing the whereabouts of Brown and being desirous of protecting their rights as fully as possible, requested the Bank of Greene County to accept and hold a check for $210 payable to "The City Bank & Farmers Trust Company, Executors Estate of John P. Guilford, or Morris D. Brown and Olive Lejeune Brown." The bank did not care to undertake such an uncertain task and declined; but the defendants still hold the check, willing to pay it to whomsoever may be entitled to it.

As before stated, the City Bank Farmers Trust Company made no answer to defendants' letter of August 13, 1936, in which the latter explained the conditions of the timber purchase and reoffered the check. But on September 8, 1936, the attorney for the plaintiffs sent a letter to defendants demanding the cessation of all operations on the land and on September 10, 1936, the City Bank Farmers Trust Company sent a similar letter. Neither of these letters refer to the previous correspondence, nor do they indicate the theory or basis upon which the defendants are to be treated as trespassers; they merely assert ownership of the land coupled with a peremptory demand that defendants cease cutting timber and the avowal of an intention to hold defendants responsible for damages. Thereafter on November 7, 1936, plaintiffs brought this suit with a bill of complaint, the allegations of which have been referred to hereinbefore.

The bill fails to disclose the theory upon which plaintiffs contend that they have become vested with the ownership of the timber. It must be their position that the defendants have forfeited any further claim or title thereto through failure to comply with the conditions under which they were allowed to remove it, that the defendants have lost the right of removal, and that the timber remaining on the land has reverted to the plaintiffs. This theory must necessarily be founded on the assumption that defendants failed to comply with the provision of their deed relating to the extension period; and, inasmuch as the defendants did duly notify the plaintiffs and tendered them the amount due, it is evidently the contention of the plaintiffs that the notice and tender should have been made to the Browns; and, not having been so made, the right to remove the timber has expired and the timber reverts to plaintiffs as owners of the fee in the land. In other words, that while Brown, the original grantor,...