Gulf Red Cedar Co. v. O'Neal

• Decision Date: 06 June 1901
• Citation: 30 So. 466,131 Ala. 117
• Parties: GULF RED CEDAR CO. ET AL. v. O'NEAL ET AL.
• Court: Alabama Supreme Court

30 So. 466

131 Ala. 117

GULF RED CEDAR CO. ET AL. v. O'NEAL ET AL.

Supreme Court of Alabama

June 6, 1901

Appeal from chancery court, Butler county; W. L. Parks, Chancellor.

Bill by Lee O'Neal and others against the Gulf Red Cedar Company and others. Demurrer by defendants overruled, and they appeal. Reversed.

The facts of the case, as shown by the averments of the bill, are as follows: The said Thomas C. Crenshaw, in his lifetime executed a deed to said four children and Edward P. Crenshaw another child, conveying certain lands described. The deed is made "Exhibit A" to the bill and purports to have been executed on April 9, 1873, and to have been recorded on the same day. Said deed contained the following provision after having first conveyed the lands: "I hereby reserve to myself the right to control and manage the property hereinabove conveyed, for the use and benefit of said above-named children until the youngest child arrives at the age of twenty-one years; and I also reserve the right to sell and convey any portion of the same and reinvest the proceeds in any other property for the exclusive use and benefit of said children."

It is averred that after the deed was duly recorded, said T. C Crenshaw, without the consent of either of the complainants struck or caused to be stricken from the deed the words "until the youngest child arrives at the age of twenty-one years," and to be inserted in their place the words "during my life," and wrote at the bottom of the deed after his signature the following: "June 1st 1873. The words 'until the youngest child arrives at the age of twenty-one years' were erased, and the words 'during my life' were inserted before delivery;" and said memorandum was signed by him and attested. It is alleged that said changes were made after the record and delivery of the deed, but it is averred, that if mistaken in this, then, it is averred, that the deed was delivered after the making of the memorandum. After the making of the deed, Edward P. Crenshaw, for valuable consideration, reconveyed to his father, said Thomas C., his undivided one-fifth interest in the lands by deed which is made "Exhibit D," of date January 14, 1882, and said Thomas C. subsequently conveyed the same undivided one-fifth interest to complainant Lillian Wagner (then Crenshaw) the deed being of date December 18, 1888. It is alleged, however, that in making this deed to Mrs. Wagner, said Thomas C. reserved the following rights and interests: "And I hereby reserve to myself the right to use, control and manage the property hereinabove conveyed for my own use and benefit during my life. And I also reserve the right to sell and convey or mortgage all or any portion of the same for the purpose of paying my debts or the debts of said grantee, or for the purpose of raising proceeds for my own use or the use of the grantee, or to reinvest the proceeds in other property for the use and benefit of said grantee."

This being the state of title, said Thomas C. Crenshaw, Louisa Crenshaw and Lillian Crenshaw (now Wagner) executed on the 18th day of December, 1888, a conveyance and contract, in one instrument, to Joseph Steiner & Sons by which the right to cut cedar timber off of a part of the lands which had been conveyed by said Thomas C., to his children-said right to cut and use the timber, to extend for a period of 10 years from said 18th day of December, 1888, and to end at that time. Rights of ingress and egress upon the lands were given to said Joseph Steiner & Sons and there were other provisions which it is unnecessary to notice. This agreement is copied as "Exhibit B" to the bill.

The defendant corporation, the Gulf Red Cedar Company, cut some timber from the lands covered by the agreement within the period limited by it, having acquired the rights of Joseph Steiner & Sons thereunder by regular conveyances. Before the expiration of said contract for cutting, to wit, the 25th day of August, 1895, Thomas C. Crenshaw executed another agreement which professes to extend the right to cut timber on the same lands from the 18th December, 1898, for three years, to wit, to the 18th day of December, 1901. A copy of this agreement is attached as "Exhibit C." It recites the making of the first agreement and its transfer and assignment by Joseph Steiner & Sons to a Virginia corporation, and from it through still another to the Gulf Red Cedar Company and makes said transfers a part of said second agreement. This agreement was executed by Thomas C. Crenshaw alone. Under this last agreement the Gulf Red Cedar Company has cut a very large amount of timber of great value. It is also alleged on information and belief that said company has cut timber from other lands were embraced in the conveyance from Thomas C. Crenshaw to his children, but not embraced in said agreement with Joseph Steiner & Sons and the Gulf Red Cedar Company.

It is also alleged in the bill that the power reserved to said Thomas C. Crenshaw in said deed to his children did not authorize him to make the sale of timber disconnected from the land, and it is denied that either of said agreements was a valid exercise of the power so reserved.

It is admitted by the averments of the bill that the rights reserved to said T. C. Crenshaw in the conveyance to Mrs. Wagner of the undivided one-fifth interest which he had bought from his son Edward P. were so broad as to vest or retain in him, in so far as creditors of, or purchasers from said Thomas C. were concerned, the title to said one undivided one-fifth interest. It is further admitted that said first agreement passed to Joseph Steiner & Sons said one-fifth interest along with the one-fifth which vested in Mrs. Wagner under the first deed, and the one-fifth which vested in Louisa Crenshaw under said first deed, and that thus three-fifths interest in the timber which might be cut to December 18, 1898, passed under said first agreement. But it is denied that the one-fifth interest of Mrs. Lee O'Neal (formerly Crenshaw) and the one-fifth interest of Mary Davis passed under said instrument. It is, however, denied by the averments of the bill that the interest of any of the complainants passed under the second (extension) agreement, and it is averred that the only interest that passed under that agreement was the interest that said Thomas C. had retained in conveying to Mrs. Wagner the land he had bought from Edward P. Crenshaw; and it is insisted that the interest of none of the complainants passed under the second (extension) agreement. It is averred that T. C. Crenshaw held the lands during his lifetime in actual possession in recognition of his deed to his children and that after his death which occurred in November, 1899, and since that time, complainants have been in possession of the land.

It is alleged that shortly after the death of said Thomas C., the complainants gave notice to the defendant corporation not to cut any more timber on the lands; but that regardless of the notice it has continued to cut timber not only on the lands described in the agreement, but on other lands embraced in the deed from said T. C. Crenshaw to complainants, and that said defendant corporation has converted to its own use the cedar timber on said lands-a large part of it having been sawed up into cedar lumber. It is further alleged that the Gulf Red Cedar Company had notice at the times when it cut the trees and converted the same to its own use, of the fact that complainants were the joint owners of the lands from which it was cut, and of the extent of their interest therein.

The necessity for a discovery is alleged. It is averred that for want of information or knowledge, complainants are unable to tell how much cedar timber was cut by said corporation from the lands described in the agreement with Joseph Steiner &amp Sons except that it was of very great value, to wit, $20,000; that they are likewise unable to state the amount cut from other lands included in the deed to them, except that it was of large value, to wit, $20,000; that likewise they are unable to state the value of the timber cut by said defendant under the extension agreement except that they allege it to be of large value, to wit, $50,000. That complainants, if they could ascertain with any accuracy (as they aver they cannot), the whole amount of the timber that was cut off and converted by said defendant from all said lands, yet they aver that they are wholly unable, for want of knowledge and information, to show what proportion of the same was cut from the lands described in the Steiner contract during the 10 years of its existence when said corporation owned three-fifths of what it cut and removed, and the amount cut off the same lands under the extension agreement when it only owned one-fifth. That the corporation has refused to account to them or either of them for anything or as to the trees cut off of any of the land; and that as they cannot learn with anything like accuracy, the number and value of the cedar trees cut from said lands as aforesaid, a discovery from the corporation through its officers, books and agents is absolutely necessary. That by reason of the fact that all the data and information necessary to fix the amounts which the corporation should pay to complainants rests peculiarly within the knowledge of the corporation, and cannot be ascertained except by discovery from defendant of the amount of the trees cut by it from said lands and the ruling prices thereof, a resort to a court of equity is necessary. It is also alleged that as the time covered by the extension agreement has not yet expired, and as the defendant still insists on the same as conveying all the interests of the complainants, that said agreement is a cloud upon the title in so far as...