De Goosh v. Baldwin & Russ

• Decision Date: 08 January 1912
• Citation: 82 A. 182,85 Vt. 312
• Court: Vermont Supreme Court
• Parties: DE GOOSH v. BALDWIN & RUSS.

82 A. 182

85 Vt. 312

DE GOOSH

v. BALDWIN & RUSS.

Supreme Court of Vermont. Orange.

Jan. 8, 1912.

Exceptions from Orange County Court; Alfred A. Hall, Judge.

Trespass quare clausum fregit by Frank De Goosh against Baldwin & Russ. There was a verdict and judgment for plaintiff, and defendants excepted. Judgment reversed.

In this action the defendants are charged in trespass with breaking and entering the plaintiff's close, and then and there taking and carrying away, of the property of the plaintiff., 200,000 feet of wood and lumber and 50 cords of hemlock bark, and converting the same to their own use. Defendants pleaded the general issue and liberum teueuientuin. The plaintiff new assigned, to which defendants filed a rejoinder, and notice, in addition to their pleas already filed, that on the trial of said cause they would offer evidence tending to prove that the property in and the title to the trees on said close described in the plaintiff's declaration at the time the said several supposed trespasses were committed were in the defendants; also, that the plaintiff did not at the time this suit was brought, nor at any time since, have any property rights or ownership in the trees standing and growing, or which had been cut from said close and were thereon lying and being; also, that the defendants went upon said close by leave and license of one E. H. Saxby from whom defendants got title to said trees and timber, and from whom the plaintiff got title to the land, or so much thereof as defendants did not own by prior deed.

It appeared in evidence that whatever right, title, or interest the plaintiff had in or to the trees standing or the lumber and bark cut and lying on the close came from E. H. Saxby. It also appeared that whatever title the defendants had to the standing trees and this same lumber and bark came to them from the same grantor, Saxby; that Saxby by quitclaim deed, duly executed and recorded, conveyed to one J. B. Bean the timber on the close described; and that the same timber, before it was in fact severed from the land, was in like manner conveyed by Bean to the defendants. Sylvanus H. Martin and Perley H. Martin joined as grantors in the deed from Saxby to Bean, but what their interest was in the land or timber described the bill of exceptions does not show. This deed, above the conclusion, was as follows: "Know all men by these presents, that we, Sylvanus H. Martin and Edward D. Saxby and Perley H. Martin, of Vershire and West Fairlee, in the county of Orange, and state of Vermont, in consideration of two hundred seventy-five dollars paid to our full satisfaction by J. B. Bean of West Fairlee, in the county of Orange, and state of Vermont, have remised, released, and forever quitclaimed unto the said J. B. Bean, all right and title which we, the said Martins, and E. H. Saxby, or our heirs, have in and to a certain lot of standing timber in West Fairlee, in the county of Orange, and state of Vermont, described as follows, viz.: It being all the standing spruce, fir, hemlock, bass, ash and hard wood timber upon the Sylvanus H. Martin farm, so called, described as follows: It being all the standing timber bounded north by a line of spotted trees, west by C. J. Slack, south by George Baldwin and east by a wire fence, the pasture fence between the said lot and the home pasture. Meaning to convey all the standing timber upon said above-described premises and said J. B. Bean shall have three years from April 1, 1905, for the purpose of cutting and removing said timber. To have and to hold all our right and title in and to said quitclaimed standing timber with the appurtenances thereof, to the said J. B. Bean, his heirs and assigns forever. And furthermore, we the said Sylvanus H. Martin and P. H. Martin and E. H. Saxby do, for ourselves, our heirs, executors and administrators, covenant with the said J. B. Bean his heirs and assigns, that from and after the ensealing of these presents, we the said Sylvanus H. Martin and E. H. Saxby and Perley H. Martin, will have and claim no right in or to the said quitclaimed standing timber. In witness whereof," etc.

On June 13, 1907, Bean by quitclaim deed conveyed all his right and title in and to the said standing timber with the appurtenances thereof to the defendants. This deed contained the same time limit clause as did the deed to Bean, with the words "and not after" inserted immediately after the date "April 1, 1905." It also contained in substance the same habendum, followed by the same covenant. On October 22, 1908, Saxby and his wife quitclaimed all their right, title, and interest in the land, and also ail their "right, title, and interest in and to the timber cut from said piece of land by J. B. Bean, or his assigns, or the agents thereof, which was not removed from said land before the 2nd day of April, 1908, and all bark peeled from said timber." The plaintiff's evidence tended to show that he took possession of the premises, and the wood, lumber, and bark thereon under said deed shortly after its date. At the time of the plaintiff's purchase, there was lumber and bark lying and being on the land, which was subsequently removed by the defendants. It appeared that all this lumber had been cut by the defendants prior to April 1, 1908, except about 3,000 feet, and that it was all cut and the bark peeled and piled some time before the plaintiff got title by virtue of his deed from the Saxbys. The plaintiff purchased the farm with full knowledge that defendants claimed they had paid for and owned all the timber, lumber, wood, and bark on that part of the farm described in the deed from Sax by to Bean. The plaintiff's evidence tended to show that, after his said purchase, he notified the defendant not to remove the lumber and bark lying and being on said lot; and he claimed to recover the full value of all such lumber and bark there when he took his deed October 22, 1908, which was subsequently removed by the defendants.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Frank S. Williams and Arthur W. De Goosh, for plaintiff.

R. M. Harvey and David S. Conant, for defendants.

WATSON, J. Although the gist of the action is the breaking and entering the plaintiff's close, the real bone of contention is the title to the lumber and bark lying and being thereon at the time the plaintiff became the owner of the land, October 22, 1908. In addition to the land, the plaintiff then acquired all the right, title, and interest in and to such lumber and bark as the Saxbys had. Before any of the standing timber was cut, the defendants took a conveyance from Bean of all his right and title therein with the appurtenances thereof. The ownership of the lumber and bark in question at the time named is therefore dependent upon the construction of the deed to Bean. The plaintiff contends that the time-limit clause therein made the grantees' title conditional on the timber being cut and removed from the land within the time specified, and that title to so much thereof as was not thus cut and removed remained in the grantor or reverted to him at the expiration of that period. The defendants contend that the sale was absolute, and that the so-called time-limit clause is a mere covenant naming a time within which entry upon the land might be made for the purpose of cutting and removing the timber.

The question is, What was the intention of the grantors?...