Hearin v. Union Sawmill Co.

• Citation: 151 S.W. 1007,105 Ark. 455
• Parties: HEARIN v. UNION SAWMILL COMPANY
• Decision Date: 09 December 1912
• Court: Supreme Court of Arkansas

151 S.W. 1007

105 Ark. 455

HEARIN v. UNION SAWMILL COMPANY

Supreme Court of Arkansas

December 9, 1912

Appeal from Union Chancery Court; J. M. Barker, Chancellor affirmed.

Decree affirmed.

J. B Moore and Warren & Smith, for appellants.

1. The contract is controlled by the customs of trade. Parties are presumed to contract with reference to the known customs and usages of trade with reference to the subject-matter of the contract. 9 Cyc. 252; 69 Ark. 317; 10 L. R. A. 735; 80 U.S 653; Jones on Ev. 576. Proof of custom is admissible to show that "timber" means merchantable timber. 51 So. 3; 138 S.W. 36; 12 Cyc. 1081 (e) and (b); 60 S. E. (Ga.) 297; 49 So. 248. See also 4 Cent. Rep. 689, 6 A. 48; 164 Pa. 51; 77 Ark. 120.

2. If it was the specific understanding of all parties that the old-field pine was not purchased, or if Curphey wilfully misled appellants to so believe for the purpose of fraudulently obtaining title to it, appellee can not establish title under either state of facts. 107 Ill. 302; 69 Tex. 509; 51 Minn. 300; 1 De G. M. & G. 710; 21 L. J. Ch. (N S.) 663; 77 Wis. 430; 37 L. R. A. 593.

3. If the deed did not express the intention of the parties, it will be reformed. 5 L. R. A. 157 et seq., foot notes.

Gaughan & Sifford and Powell & Taylor, for appellee.

1. Having admitted that they read the deed before executing and delivering it, Mr. and Mrs. Hearin are estopped to claim fraud. 71 Ark. 185; Stewart v. Fleming, ante p. 37.

2. The rule is thoroughly established in this State that the burden is on the person claiming mutual mistake to establish it by proof that is clear, decisive, unequivocal and beyond all reasonable controversy. 14 Ark. 482; 66 Ark. 155; 71 Ark. 614; 72 Ark. 546; 75 Ark. 72; 79 Ark. 256; 81 Ark. 420; Id. 166; 82 Ark. 226; 83 Ark. 131; 85 Ark. 62; 84 Ark. 349; 89 Ark. 390; 90 Ark. 24; 124 S.W. 370.

OPINION

HART, J.

J. F. and J. C. Hearin were in 1905 the owners of a tract of land in Union County Arkansas, on which grew oak and pine timber. On the 27th day of March, 1905, they conveyed to the Summit Lumber Company, a corporation, "all the pine and oak timber ten inches and up" on said land. Eight years was given in the deed to remove the timber. Subsequently it was discovered by the parties that a mistake had been made in the description of the land, and a new deed was executed on the 19th day of June, 1906, and the timber was again described as "all the pine and oak timber ten inches and up."

The tract of land in question contained both virgin and old-field pine. Old-field pine is pine that grows on land that has been once farmed. In 1909 the Summit Lumber Company conveyed the timber so purchased by it to the Union Saw Mill Company, another corporation. All the deeds referred to were filed for record. The Summit Lumber Company began to cut and remove the old-field pine, as well as the virgin pine. The Hearins claimed that the old-field pine was not embraced in the timber deed given by them to the Summit Lumber Company, and in 1909 they conveyed "an undivided half interest in and to all the old-field pine timber ten inches and upwards at the stump" standing and growing on said land to T. W. Ramsey, J. W. Warren and C. W. Smith, upon consideration that their grantees should bear the expenses of litigation in a suit against the Summit Lumber Company to recover the old-field pine.

This suit was instituted in the chancery court by J. F. Hearin, J. C. Hearin, T. W. Ramsey, J. W. Warren and C. W. Smith against the Union Saw Mill Company and Summit Lumber Company. The plaintiffs alleged in their complaint that the old-field pine was not embraced in the grant of timber to the Summit Lumber Company, and also alleged that the language used in the deed was inserted by fraud or mistake, and that it was not intended by the parties that the old-field pine should be conveyed. The prayer of the complaint is that the timber deeds be cancelled as a cloud upon plaintiff's title, and that they be reformed to conform to the intention of the parties and for damages.

The defendants deny the allegations of fraud and mistake, and aver that the old-field pine was conveyed under the timber deeds. Evidence was introduced by both parties to sustain their respective contentions. The chancellor found in favor of the defendants, and plaintiffs have appealed.

C. W. Curphey was the agent of the Summit Lumber Company in purchasing the lands from J. F. and J. C. Hearin. It appears that Mrs. J. C. Hearin owned a part of the land and her husband, J. F. Hearin, owned a part. Both testified it was understood between them and Curphey at the time the purchase of the timber was made and the deed to the same was executed that the old-field pine was not to be included. They said that at that time old-field pine had no market value, and that Curphey refused to purchase it; that there was no market value for old-field pine in that part of the country until in 1906 and 1907. Other evidence introduced by them tended to show that the mill operators did not begin to purchase old-field pine and saw it into lumber until the latter part of 1905. They said that the old-field pine had more knots in it than the virgin pine, and for that reason could not be profitably sawed into lumber at the time the timber in question was conveyed to the Summit Lumber Company in the spring of 1905. Afterwards they said that the price of lumber began to rise, and it was not until then that the saw mill operators began to purchase old-field pine. The Hearins also testified that one of the agents of the Summit Lumber Company began to estimate the old-field pine in question in 1907, and that they told him that the old-field pine was not embraced in the deed made by them to the Summit Lumber Company. The agent who made the estimate denied that they made any objection at the time, and denied that they contended that the old-field pine was not included in the deed during the time he was making the estimate.

The evidence on the part of the defendants tended to show that at the time the Summit Lumber Company purchased the timber from the Hearins it and other saw mill operators were purchasing old-field pine and sawing it into lumber. Some of the witnesses said they began to purchase old-field pine and saw it into lumber as early as 1903, and some place the date in 1904.

It is first contended by counsel for the plaintiffs that old-field pine is not included in the description, "all the pine and oak timber ten inches and up." We think they are not correct in this contention. These general words aptly include every kind of pine on the lands. The language used is broad enough to cover the old-field pine. It does not make any difference whether or not it was profitable at that time to saw old-field pine, for, as we have already seen, the language of the deed is not merchantable timber, but is "all the pine and oak timber ten inches and up." Since the language of a deed is broad and comprehensive enough to cover all the pine timber that may be found on the land of a certain...