Goin v. Absher

Decision Date25 April 1949
Docket NumberRecord No. 3468.
PartiesJOHN GOIN v. O. W. ABSHER.
CourtVirginia Supreme Court

1. TREES AND TIMBER — Construction and Validity of Deeds — Extension of Time for Cutting by Grantor Who Had Conveyed Fee to Third PartyCase at Bar. The instant case was an action for an injunction to restrain defendant from interfering with plaintiff in the exercise of his right to cut and remove standing timber from defendant's land. The parties' common grantor had conveyed the timber to plaintiff with a right to cut and remove it within two years from the date of his deed, and the privilege of an extension of time to exercise such right if plaintiff paid the grantor, within the two-year period, interest on the purchase price from the day the extension began. She then conveyed the land to defendant by general warranty deed, without reservation or exception, "to have and to hold . . . in fee simple forever". Both deeds were recorded and both parties had actual notice of their contents. Within the time prescribed plaintiff paid the grantor the required interest and received from her an instrument under seal granting him an additional two years in which to cut and remove the timber, but defendant notified him that his rights had expired and that he would not be permitted to exercise them. The trial court granted an injunction.

Held: Error. While title to the timber remained in the parties' grantor and did not pass to plaintiff under his deed unless the timber was cut and removed within the specified time, and she could convey or retain it and was under obligation to extend the time to cut and remove only if plaintiff complied with the conditions stated in his deed as a prerequisite therefor, the habendum in defendant's deed was an express statement of her intention to convey to him an absolute estate. No right, title, equity, claim or interest of any kind, vested or contingent, in and to or growing out of her ownership of the land, remained in the grantor thereafter. Inasmuch as defendant had notice of plaintiff's rights, he took the land subject thereto, and was bound to extend the time to cut and remove the timber if plaintiff brought himself within the terms of his deed, but plaintiff, although he knew of the conveyance to defendant, did not notify him of his desire for an extension, nor did he tender to him the compensation stipulated therefor.

2. TREES AND TIMBER — Extension of Time — Rights of Grantee of Fee with Notice of Privilege. The Supreme Court of Appeals has held that the right to the extension of time in timber contracts is in the nature of an option whereby the owner of the land is bound and the purchaser of the timber is not bound, and to claim the option or privilege of extension a notification to that effect is required to be given the owner of the property before the expiration of the period originally allotted with a tender of the stipulated amount. In the absence of specific reservation or exception, the grantee of the fee, with notice, takes the land subject to the burden and with the right to receive the benefit.

3. ESTATES — Classification — Fee Simple Defined. — A fee simple is a freehold estate of inheritance, free from conditions and of indefinite duration. It is the highest estate known to the law, and is absolute, so far as it is possible for one to possess an absolute right of property in lands.

4. INJUNCTIONS — Cutting or Removing Timber — Issues Raised on Appeal Not Moot Although Injunction Expired — Case at Bar. The instant case was an action for an injunction to restrain defendant from interfering with plaintiff in the exercise of his right to cut and remove standing timber from defendant's land. The parties' common grantor had conveyed the timber to plaintiff with a right to cut and remove it within two years from the date of his deed, and the privilege of an extension of time to exercise such right. She had then conveyed the land to defendant in fee, and later had granted plaintiff the extension of time provided in his deed. The trial court decided that the grantor had the right to extend the burden upon the land, notwithstanding that she had conveyed the fee, and granted the injunction for the period of the extension. The record was silent as to whether plaintiff cut and removed the timber during the period between the granting of the injunction and the date when an appeal and supersedeas were granted defendant. On appeal plaintiff moved to dismiss on the ground that the injunction had expired by its own limitation and the issues presented were moot.

Held: That the issues raised were not moot, for if plaintiff had cut and removed the timber and the case were now dismissed as moot, the final decree of the trial court could be pleaded in bar to an action against him for damages.

Appeal from a decree of the Circuit Court of Appomattox county. Hon. Joel W. Flood, judge presiding.

The opinion states the case.

George Abbitt, Jr., and J. V. Lewis, for appellant.

John B. Boatwright and A. L. Pitts, Jr., for the appellee.

HUDGINS, C.J., delivered the opinion of the court.

On January 18, 1945, Mildred F. Baldwin, the owner of the fee, and her husband, in consideration of $550, conveyed to O. W. Absher the standing timber on approximately 100 acres of land lying in Appomattox county. The grantee was given two years from the date of the deed in which to cut and remove the timber, and the privilege of an extension of time to exercise said rights in the following language: "And if for any good reason on account of scarcety of labor or other emergency, the party of the second part cannot get the timber sawe and off of said place within two-years, parties of the first part agrees to extend the time for cutting and removing timber from said place a reasonable time, and the party of the second part in consideration of the extention of time is to pay parties of the first part six per cent interest on the purchase price from the day the extention of time begins."

The grantee convenanted that in cutting and removing the timber and exercising the other rights given him under the deed, he would "do as little injury or damage as possible to the grass, crops and other property of the said parties of the first part, and will also make compensation to the parties of the first part for all injury or damage so done. And also will amend and repair all such fences and hedges upon the said property as shall have been injured or damaged while cutting down, felling and carrying away said timber and trees."

On May 23, 1946, within the two-year period, Mildred F. Baldwin conveyed the land, without reservation or exception, by general warranty deed, to John Goin.

On January 13, 1947, five days before the expiration of the two-year period, O. W. Absher paid Mrs. Baldwin $66 (6% interest for two years on the purchase price) and received from her an instrument under seal granting him an additional two years in which to cut and remove the timber and to exercise other privileges.

The recordation of the timber deed to Absher and of the deed to Goin was constructive notice of the respective rights of the parties. However, both Absher and Goin had actual knowledge of the contents of the two deeds.

Absher made no entry upon the land for the purpose of cutting and removing the timber until February, 1948, at which time Goin informed him that his rights had expired and that he would not be permitted to cut and remove the timber. Absher immediately applied for and obtained an injunction restraining John Goin from interfering with him in cutting and removing the timber until January 18, 1949. From a decree declaring that Mrs. Baldwin had a right to extend the time and enjoining the land owner from interfering with Absher in the exercise of his right to cut and remove the timber, Goin obtained this appeal.

The question presented is whether the obligation to extend time to cut and remove timber and receive compensation therefor remained in Mrs. Baldwin, or passed by her deed to the grantee of the land.

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2 cases
  • Avery v. Beale, 4159
    • United States
    • Virginia Supreme Court
    • March 15, 1954
    ...by Ray T. Avery in his cross bill, is not moot but dependent on the correctness of the trial court's final judgment. Goin v. Absher, 189 Va. 372, 53 S.E. (2d) 50. There is therefore no merit in this contention and the motion to dismiss this appeal is Eagle Lodge, Incorporated, a corporation......
  • Gowdey's Estate v. CIR
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 25, 1962
    ...364, 109 S.E. 189, 192 (1921). In personal property, however intangible, it would be termed an absolute estate. See Goin v. Absher, 189 Va. 372, 53 S.E. 2d 50, 53 (1949). Presently, if less than such an ownership was invested in the purchaser by the Franchise Agreement — any substantial rig......

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