Hardison v. Lilley, 90

• Decision Date: 14 October 1953
• Docket Number: No. 90,90
• Court: North Carolina Supreme Court
• Parties: HARDISON, v. LILLEY et al.

Page 111

78 S.E.2d 111

238 N.C. 309

HARDISON, v. LILLEY et al.

No. 90

Supreme Court of North Carolina.

Oct. 14, 1953

Peel & Peel, Williamston, for plaintiff, appellee.

Clarence W. Griffin, Williamston, for defendants, appellants.

DEVIN, Chief Justice.

In 1917 Kader Lilley and his wife, for a valuable consideration, conveyed to Levi Hardison by deed in fee simple with warranty a tract of land containing 65 acres, situate in Martin County, and described by metes and bounds. Incorporated in the deed immediately following the description of the land appears the following clause:

'Reserving and excepting from the operation of this deed all the pine, cypress and poplar timber of the size of 6 inches in diameter or may attain to the size of 6 inches 15 inches above the ground and that the said Kader Lilley or his heirs or assigns shall have the period of 50 years to cut and remove said timber and to have the right to enter either themselves, or their servants at any time within said period to cut and remove said timber.'

It is admitted that the plaintiff has succeeded to the title of Levi Hardison, and that he is the owner of all rights and interests conveyed by the deed of Kader Lilley in 1917, and that the defendants are the successors in title of Kader Lilley and are the owners of any rights reserved or excepted in the deed of 1917.

The plaintiff denies that the defendants own any right in the timber on the described land by virtue of the reservation and exception contained in the deed of 1917, and has instituted this suit (1953) to restrain defendants from entering upon and cutting any timber now standing and being on this land.

The court below was of opinion that the rights claimed by defendants under the quoted clause were repugnant to the fee simple title conveyed by the deed, and ineffective to limit the absolute estate in the land which vested in the grantee Levi Hardison and descended to the plaintiff. Accordingly judgment was entered permanently restraining defendants from entering upon and cutting timber on the described land.

In making this ruling the court applied to the facts of this case the principle set forth in Kennedy v. Kennedy, 236 N.C. 419, 72 S.E.2d 869 and Jeffries v. Parker, 236 N.C. 756, 73 S.E.2d 783. We are unable to concur in the view that the principle enunciated in those decisions of the Court is applicable here. In the Kennedy case the grantor in the deed in the granting, habendum and warranty clauses conveyed to the grantee an unlimited fee simple estate in the land, and following the description of the land added a clause reserving a life estate in the grantor. This was held repugnant to the estate conveyed and of no effect. The same principle on similar facts was again stated in the Jeffries case. Having conveyed the land in fee simple the grantor could not by a clause inserted as part of or following the description limit the estate already granted. The authorities cited in those cases support this ruling.

Here, however, the reservation and exception relate only to the quantum of the property described, and not to the quality of the estate conveyed, and are therefore not repugnant to the fee simple estate in that which was conveyed. Thus where a grantor conveys a tract of land in fee simple and sete out in or following the description a provision that a certain definitely described number of acres of the land is reserved or excepted, the quality of the estate in the remainder in the grantee is unlimited, but the quantity, the quantum, of the property conveyed is reduced by the exception, and the title to the excepted portion remains in the grantor and his heirs. Byrd v. Myers, 211 N.C. 394, 190 S.E. 471; Brown v. Rickard, 107 N.C. 639, 12 S.E. 570; Midgett v. Wharton, 102 N C. 14, 8 S.E. 778; Fisher v. Cid Copper Mining Co., 97 N.C. 95, 4 S.E. 772; Justice v. Eddings, 75 N.C. 581; 16 A.J. 607, 610; 26 C.J.S., Deeds, § 139, p. 449; 34 A.J. 517.

This Court has recognized and given effect to the exception of timber and timber rights in deeds conveying land. Roberts v. Forsythe, 14 N.C. 26; Whitted v. Smith, 47 N.C. 36; Fisher v. Cid Copper Mining Co., 97 N.C. 95, 4 S.E. 772; Bond v. Cashie & C. R. R. & Lbr. Co., 127 N.C. 125, 37 S.E. 63; Bunch v. Elizabeth City Lumber Co., 134 N.C. 116, 46 S.E. 24; Hawking v. Goldsboro Lumber Co., 139 N.C. 160, 51 S.E. 852; Dennis Simmons Lumber Co. v. Corey, 140 N.C. 462, 467, 53 S.E. 300, 6 L.R.A.,N.S., 468; Mining Co. v. Bessemer City Cotton Mills, 143 N. C. 307, 55 S.E. 700; Hornthal v. Howcott, 154 N.C. 228, 70 S.E. 171; Bateman v. Kramer Lumber Co., 154 N.C. 248, 70 S.E. 474, 34 L.R.A., N.S., 615; Kelly v. Enterprise Lumber Co., 157 N.C. 175, 72 S.E. 957; Powell v. Fosburg Lumber Co., 163 N.C. 36, 79 S.E. 272; Shannonhouse v. McMullan, 168 N.C. 239, 84 S.E. 259; Carroll v. Batson, 196 N.C. 168, 145 S.E. 9. The same rules apply to reservation and exception of timber rights as to grants. 34 A.J. 518.

'Where a grantor makes a valid exception in a deed of conveyance, the thing excepted remains the property of the grantor and his heirs.' Fisher v. Cid Copper Mining Co., 97 N.C. 95, 4 S.E. 772, 774.

In Mining Co. v. Bessemer City Cotton Mills, 143 N.C. 307, 55 S.E. 700, the deed for the land contained the following reservations or exception by the grantor: 'All the woods and timber is reserved by me'. It was said that 'a deed purporting to convey all the wood and timber therein described vests in the grantee a present estate of absolute ownership in said timber defeasible as to all timber not removed within the time required by the terms of the deed. * * * Here the land was conveyed in fee with an exception or reservation of the timber. In such case, if a time or event is specified upon which the timber must be cut, the reservation expires upon the happening of the event or expiration of the time. * * * Whether the right to cut timber is a grant, or a reservation, it expires at the time specified.' When no time is specified the grantor's retained right is held under the implied agreement to cut and remove within a reasonable time.

In Hornthal v. Howcott, 154 N.C. 228, 70 S.E. 171, 172, the grantor, having previously conveyed the timber with right to cut and remove in 4 years, thereafter conveyed the land to the defendants, noting in the deed that the timber had been sold 'and is excepted from this deed.' It was held the grantee acquired the land and all timber not cut and removed within the four years. The writer of the opinion (Justice Allen) quoted from Hawkins v. Goldsboro Lumber Co., 139 N.C. 160, 51 S.E. 852: 'The true construction of this instrument is that the same conveys (or reserves) a present estate of absolute ownership in the timber, defeasible as to all timber not removed within the time required by the terms of the deed.' This statement of the law was approved in Dennis Simmons Lumber Co. v. Corey, 140 N.C. 462, 53 S.E. 300.

In Carroll v. Batson, 196 N.C. 168, 145 S.E. 9, 10, in the deed for the land the grantor reserved the right to all timber 8 inches in diameter for the period of 5 years. It was held the purchaser of the land acquired title to all the timber reserved by the grantor which remained uncut at the expiration of the 5-year period. 'At the expiration of the [5 years] the timber followed the land'.

The decision of this Court in Bond v. Cashie & C. R. R. & Lbr. Co., 127 N.C. 125, 37 S.E. 63, decided in 1900, illustrates the effect of the exception of timber from the operation of the deed. There the plaintiff's deed for the land dated 1871 contained exception of 'the good heart timber suitable for mill Timber.' It was held the timber referred to was never granted to the plaintiff--was excepted from his deed--and he had no right to recover therefor. And in the same case the deed under which the defendant claimed, from Levi Harden to Hoggard. dated 1863, contained the following exception: 'Except the pine timber suitable for mill timber, which I hereby reserve while I hold the mill, or my children'. It was said the language in the deed 'constituted a reservation, and a reservation for the life, at longest, of the grantor', and that after his death the heirs of Levi Harden could convey nothing. It may be noted in this case the court approved the submission of an issue to the jury as to how many of the timber trees cut were 'good heart timber suitable for mill timber' at the date of the deed in 1871.

The language of the clause under consideration in the case at bar is 'reserving and excepting.' While there is a distinction between these words, Central Bank & Trust Co. v. Wyatt, 189 N.C. 107, 126 S.E. 93, they are often used interchangeably. 34 A.J. 519. Here both words were used by the grantors. We think it was the intention of the grantors to withdraw from the effect of the conveyance part of that which otherwise would have passed under the description of the land in the deed. Vance v. Pritchard, 213 N.C. 552, 197 S.E. 182. There is nothing in the record before us to indicate that either plaintiff or defendants or their predecessors in title have at any time attempted to assert any rights to the timber until shortly before this suit was instituted. The cultivation of the arable land, if there be such on this tract of land, would not affect the title to the timber reserved in the deed, nor would the grantors lose their rights by non-use.

In the deed of Kader Lilley in 1917 he reserved and excepted all the pine, cypress and poplar timber 6 inches in diameter 'or may attain to the size of 6 inches,' and provided that Kader Lilley or his heirs 'shall have the period of 50 years to cut and remove said timber.' This description apparently carried all timber then 6 inches in diameter or which should attain the size of 6 inches within 50 years from the date of the deed. That is the contract the original parties made. That is the deed for which Levi Hardison paid one thousand dollars in 1917....