Harding v. Jennings.

Decision Date06 December 1910
Citation68 W.Va. 354
PartiesHarding v. Jennings.
CourtWest Virginia Supreme Court

1. Logs axd Logging Sale of Standing Timber Sufficiency of Contract.

A written contract selling standing trees must describe with legal certainty the land on which they stand, so that it may be identified.

2'. Deeds Exceptions Description.

An exception in a deed conveying land must describe the thing excepted with legal certainty, so as to be ascertained, else the thing sought to be excepted will pass to the grantee.

Error to Circuit Court, Randolph County. Action by J. F. Harding and others against Cortez H. Jennings. Judgment for defendant, and plaintiffs bring error. "

Affirmed.

Wm. T. George and W. B. Maxwell, for plaintiffs in error.

A. Jay Valentine and Talbott & Hoover, for defendant in error.

Brannon, Judge:

Harding and Bowman brought an action of trespass in the circuit court of Randolph county against Jennings as surviving partner of the firm of Jennings Brothers, to recover damages for cutting and converting to their own use one thousand timber trees. The court directed the jury to find for the defendant, and upon the verdict rendered judgment for the defendant and Harding and Bowman appeal.

The plaintiffs claim that in 1879 by a written contract between Wyatt and Nestor Wyatt sold to Nestor twelve hundred timber trees and that the plaintiffs have title to those trees derivatively from said contract. Wyatt owned the land on which the trees stood, and after he sold the trees to Nestor Wyatt conveyed the land to Kerns and Kerns conveyed, to Harper, and the defendant claims derivatively from Harper. In the deed for the land from Wyatt to Kerns there is this clause of exception, "B. C. Wyatt excepts the timber in his and H. L. Nestor's trade on the lower part of this land below the line that was run through this survey when Enos Carr of B. C. Wyatt and on the upper part of the timber is all Kerns' and sold to Donohoe." In the deed from Kerns to Harper is this clause of exception: "The said Columbus Kerns excepts in this conveyance the timber sold by the II. L. Nestor and the Donohoe contract." So, the plaintiffs, Harding and Bowman, claim the timber derivatively from Wyatt, and the defendant, Jennings, claims land with the trees derivatively from Wyatt. The plaintiffs' right to the trees rests on the alleged contract between Wyatt and Nestor by which Wyatt sold the trees to Nestor. A paper purporting' to be that contract was offered in evidence, part of it gone. That part remaining reads as follows: "July 31st, 1879. This article of agreement between IT. L. Nestor of Tucker County of the first part and B. C. Wyatt of Randolph County of the second part, witnesseth that the party of the first part has this day bought of the said. Wyatt 1200 good timber trees to average 18 inches in diameter in the smallest, to be poplar, ash and cherry, as the said Nestor may find nearest the river commencing at the lower end of the survey of 1200 acres of land, takingall of said timber that can be gotten convenient to the river." The plaintiffs must stand or fall on that contract, because it is the sole basis of their claim. We have come to the conclusion that it is insufficient to vest title in the plaintiffs necessary to support the action. It is too uncertain in its description of the land on which the trees stood. Trees are a part of the very land itself, real estate. This is a sale of a given number of trees, not all, on the tract. We do not say that the trees must be identified, in the writing, but we assume that the right of selection would cover that; but when the purchaser goes to take his trees he must find the land on which the trees stand. The contract must describe the land with legal certainty. When a man sues for specific performance of a contract for the purchase of land he must have a certainty of description of his land; when he sues for specific performance of a contract selling timber or minerals he must have a contract describing the land with legal certainty, because they are on or in the land. This contract does not tell us what land or where it lies. It points no finger to its identification, by water course, by joining land, by any boundary or other means of identification. We cannot see any distinction between principles applicable in such case and in this case. Crawford v. Workman, 64 W. Va 10. It is useless to refer to the multitude of decisions bearing on this matter. It may be suggested that those exceptions in the deed,...

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