Hartley v. Neaves

Citation84 S.E. 97,117 Va. 219
PartiesHARTLEY et al. v. NEAVES et al.
Decision Date27 January 1915
CourtSupreme Court of Virginia

Appeal from Circuit Court, Dinwiddle County.

Suit for partition by Henry C. Neaves and others, in which E. A. Hartley and another were allowed to intervene as defendants. From a decree for complainants, defendants appeal. Affirmed.

Chas. E. Plummer, of Petersburg, for appellants.

R. H. Mann and Robert G. Bass, both of Petersburg, for appellees.

CARDWELL, J. In a suit instituted by Henry C. Neaves against the other heirs of Hadrian A. Neaves and Mary A. Neaves, his wife, both deceased, pending in the circuit court of the county of Dinwiddle, having for its object the partition, allotment, or sale of two tracts of land located in Dinwiddie county, one a tract of 266 acres and the other a tract of 113 acres, belonging to the parties to said suit. E. A. Hartley and R. B. Hartley intervened by petition, claiming to own the timber on the 113-acre tract by virtue of a deed dated July 5, 1905, executed by Mary A. Neaves and her two living children and their wives, viz., H. C. Neaves and Ellie Neaves, his wife, J. W. Neaves and Minnie Neaves, his wife. To this petition all of the descendants of the said Mary A. Neaves, deceased, were made parties defendant.

Mary A. Neaves acquired this tract of land under the will of her father, John M. Baugh, she to receive the profits therefrom during her natural life and at her death the land was to become the property of her children then living. The said H. C. Neaves and J. W. Neaves were the only children of Mary A. Neaves living at her death, and the circuit court, upon a hearing of the cause upon the petition filed therein by E. A. Hartley and R. B. Hartley, having for its object the construction of the aforesaid deed dated July 5, 1905, and to have the court decree against Henry C. Neaves and Ellie Neaves, his wife, and J. W. Neaves and Minnie Neaves, his wife, "requiring of them specific performance of the covenant to grant additional time in which to cut and remove said timber, " held, that the grantors in the said deed were the owners of the entire tract of 113 acres of land at the time the deed was made, and therefore conveyed at that time a title to the timber standing on the land to the grantees named in the deed, but further held that said grantees were not entitled to the timber after the expiration of the first five-year period mentioned in the deed, which expired on July 5, 1910, on account of their failure to pay the extension money for the additional time desired on or before July 5, 1910.

Petitioners, E. A. and R. B. Hartley, complaining of this latter ruling, applied for and obtained this appeal, praying that the decree of the circuit court may to that extent be reviewed and reversed by this court.

The provisions of the deed in question, which belongs to that class of conveyances now commonly known and spoken of as "timber contracts, " in so far as they are pertinent to this inquiry, are as follows:

"It is agreed that the parties of the second part shall have five years in which to cut and remove the said timber, and shall have free ingress and egress over and upon said land for the purpose of removing said timber. It is also agreed that additional time, not to exceed fi, ve years, will be granted to the parties of the second part for removal of said timber upon the payment of fifteen dollars a year for the said additional time."

None of the timber was cut during the first period of five years, which expired on July 5, 1910, and no indication is claimed to have been given of a desire on the part of the grantees in the deed, appellants here, to obtain further time within which to cut and remove the timber, nor any offer made to pay the money required for such extension until some time in October, 1910, or more than 90 days after the expiration of the first five-year period. In October, 1910, a conversation was had by one of the appellants, R. B. Hartley, with J. W. Neaves, one of the appellees, with reference to an extension of the time within which to cut and remove the timber, but the latter declined to receive the extension money or to grant any additional time, saying that the entire estate was in the hands of counsel for settlement, and it would be discourteous to receive the money. Whether or not he would have received the money if the settlement of the estate had not been in the hands of counsel is immaterial.

The errors assigned in the petition for this appeal are: (1) That the circuit court erred in construing this timber contract to be a contract to grant additional time within which to remove the timber from the land, on condition that payment for such additional time was made or tendered on or before the 5th day of July, 1910; (2) that itwas error to declare a forfeiture of the timber for failure to pay or tender, on or before July 5, 1910, the extension money provided for in said contract, even though the payment or tender on or before the time mentioned be regarded as a condition precedent.

In our view of the case it will be unnecessary to consider the second of these assignments of error, for the reason that the law, whatever it may be, with regard to the policy of courts of equity to relieve against the consequences of a failure to perform conditions stipulated in a contract, whether precedent or subsequent, has no application to this case. The decree complained of does not declare a forfeiture of the timber in question to grantors in the timber contract, but simply adjudged and decreed that the grantees had no title to or interest in the timber after the expiration of the period of five years within which to cut and remove the same, they having failed to comply with the terms and conditions upon which they alone would have had a right to further time within which to cut and remove the timber.

In Young v. Camp Mfg. Co., 110 Va. 678, 66 S. E. 843, and Wright v. Camp Mfg. Co., 110 Va. 678, 66 S. E. 843, the construction of instruments such as is in question here was carefully examined, and the conclusion reached that a deed to standing timber, with the right for a fixed period to cut and remove the same, does not convey an absolute and unconditional title to the timber, but only conveys title to such as may be cut and removed within the fixed period.

The conclusion reached in the cases just cited as to the character and effect of such contracts was approved and followed in the later cases of Brown v. Surry L. Co., 113 Va. 503, 75 S. E. 84, Quigley F. Co. v. Rhea, 114 Va. 271, 76 S. E. 330, and in the more recent case of Smith v. Ramsey, 116 Va. 530, 82 S. E. 189, where the preceding cases were reviewed, the opinion by Buchanan, J., saying:

"While the facts in those cases and in this as to what had been done under the contracts or deeds were different, the character of the contract in each was substantially the same. Those decisions would seem, therefore, to settle, if decisions can settle a question, that the provisions in such contracts for the cutting and removal of the timber within a fixed period are not covenants, but conditions."

In Wright v. Camp Mfg. Co., supra, it is said:

"By the great weight of authority it is determined that no right of title exists in the grantee after the expiration of the time specified in the deed or contract."

The controversy here depends upon the meaning of the words in the contract:

"It is also agreed that additional time not to exceed five years will be granted to the parties of the second part for removal of said timber upon the payment of fifteen dollars a year for the said additional time."

It is the contention of appellants that under a proper construction of the contract,...

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12 cases
  • Williams v. Batson
    • United States
    • United States State Supreme Court of Mississippi
    • March 20, 1939
    ...... is necessary to be made before the expiration of the time. limited in the deed. . . Hartley. v. Neaves, 84 S.E. 97; Rountree v. Cohn-Bock Co., 73. S.E. 796; Granville Lbr. Co. v. Atkinson, 234 F. 424; Murphy v. Schuster Springs Lbr. ......
  • West Yellow Pine Co. v. Sinclair
    • United States
    • United States State Supreme Court of Florida
    • January 27, 1922
    ...Zirkle v. Allison, 126 Va. 701, 101 S.E. 869, 15 A. L. R. 38; Blackstone Mfg. Co. v. Allen, 117 Va. 452, 85 S.E. 568; Hartley v. Neaves, 117 Va. 219, 84 S.E. 97. holding of the court below in construing the contract of the conveyance is in accord with the evident design of the parties to th......
  • Sun Lumber Co. v. Thompson Land & Coal Co.
    • United States
    • Supreme Court of West Virginia
    • June 16, 1953
    ...title to the timber, including that previously severed but not removed from the land.' The facts in the Virginia case of Hartley, v. Neaves, 117 Va. 219, 84 S.E. 97, very closely parallel those in this case. The parties there agreed that the grantees should have five years in which to cut a......
  • A.C. Tuxbury Lumber Co. v. Byrd
    • United States
    • United States State Supreme Court of South Carolina
    • March 19, 1925
    ...... 248, 70 S.E. 474, 34 L. R. A. (N. S.) 615, citing a number of. authorities; Rountree v. Cohn-Bock Co., 158 N.C. 153, 73 S.E. 796; Hartley v. Neaves, 117 Va. 219, 84. S.E. 97. Applying that principle, we are of the opinion that. a correct. [127 S.E. 270.] . interpretation of the ......
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