Irwin v. Baggett

• Decision Date: 19 December 1935
• Docket Number: 1 Div. 885
• Citation: 231 Ala. 324,164 So. 745
• Court: Alabama Supreme Court
• Parties: IRWIN v. BAGGETT et al.

164 So. 745

231 Ala. 324

IRWIN v. BAGGETT et al.

1 Div. 885

Supreme Court of Alabama

December 19, 1935

Appeal from Circuit Court, Baldwin County; F.W. Hare, Judge.

Suit in equity by S.J. Irwin against Alice Baggett and Thomas J Baggett. From a decree dissolving injunction, complainant appeals.

Affirmed.

Hybart & Chason, of Bay Minette, for appellant.

Beebe &amp Hall, of Bay Minette, for appellees.

THOMAS Justice.

The cause was submitted upon appellees' motion to dissolve an injunction restraining them from interfering with complainant's alleged right to cup and mark certain trees under a turpentine lease of lands, and from the decree of the circuit court dissolving the injunction this appeal was taken.

The lease in question is exhibited as an aid to defendants' pleading. Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90. When the whole of the instrument is considered, it was a lease rather than a warranty deed. Burton Steverson, 206 Ala. 508, 91 So. 74. Such is its effect when interpreted in the light of the circumstances surrounding the parties and the object in view when the lease was executed and delivered, as parties are presumed to intend to make a reasonable and rational contract. Porter v Henderson, 203 Ala. 312, 82 So. 668; Russell v. Garrett, 208 Ala. 92, 95, 93 So. 711; King v. Coffee et al., 222 Ala. 245, 131 So. 792.

Many of the rules that are pertinent, and to be applied in the construction of ambiguous clauses in conveyances, leases, and other written contracts, are collected in Lowery v. May, 213 Ala. 66, 104 So. 5. They are aids in ascertaining the expressed intention of the parties; the general rule being to construe the lease according to the parties' intention as gathered from the whole instrument, and, if the language is not clear, the circumstances attending its execution and the subsequent acts of the parties. Greenwood et al. v. Bennett, 208 Ala. 680, 95 So. 159. If not contrary to law, this intention, when so ascertained, is to be given application; and, if a deed is found to bear on its face evidence that the draftsman was unskilled in drawing such instrument, greater latitude of construction must be indulged than in cases where the instrument appears to have been skillfully drawn by one acquainted with the force and meaning of the technical expressions employed. Porter v. Henderson, supra; Clark v. Cammack, 216 Ala. 346, 113 So. 270; Lowery v. May, supra; Gamble et al. v. Gamble, 200 Ala. 176, 75 So. 924. In Allumns v. Allumns, 208 Ala. 369, 370, 94 So. 296, 297, it was observed in this connection that: "It is a well-recognized rule that each word shall be presumed to be used for some purpose, and shall be deemed to have some force and effect. Chattahoochie & Gulf R. Co. v. Pilcher, 163 Ala. 401, 51 So. 11. And in Head v. Hunnicutt, 172 Ala. 48, 55 So. 161, it was pointed out that if two clauses of a deed are entirely inconsistent and irreconcilable with each other, the latter must give way to the former, but if the words of the latter clause are of doubtful import, they will not be construed so as to contradict the certain words of a preceding clause."

It should be further noted that in construing instruments containing contradictory or ambiguous clauses, the first expression of the intention of the parties will govern, unless the intention to thereafter qualify is plainly expressed; and that where the subsequent clause is of doubtful import, it will not be held to contradict the preceding or more certain clause. McCombs v. Stephenson et al., 154 Ala. 109, 44 So. 867; Robertson et al. v. Robertson et al., 191 Ala. 297, 298, 68 So. 52; Cobbs v. Union Naval Stores Co., 202 Ala. 333, 80 So. 415; Turk v. Turk et al., 206 Ala. 312, 89 So. 457.

We set out the pertinent clauses of the lease to be as follows:

"That said first party (Thomas L. Baggett and Alice Baggett), for and in consideration of the sum of one ($1.00) Dollar, in hand, paid by the second party (S.J. Irwin and A.A. Irwin), the receipt of which is hereby acknowledged, and for the further consideration of 16 cts. per cup, to be paid as follows, to-wit: $400.00 cash, the receipt of same being hereby acknowledged, and balance of amount at 16 cts. per cup to be paid in Jan. 1930, has granted, bargained, conveyed, demised, sold and leased, to the second party, their heirs, executors and assigns all the growing pine trees for turpentine purposes now upon the following described lands, to-wit: (describing the lands). ***

"To have and to hold, cup, work, and otherwise use, said timber for turpentine purposes unto the said second party, their heirs, successors, and assigns; it being expressly covenanted and agreed that the said second party (1) may commence cupping, working and otherwise using for turpentine purposes, said timber they may desire, or their business may acquire, not later than January 1930, and continue to cup, work and otherwise use the same, for the full term of four years, beginning from January 1930, and (2) shall continue to operate until all the timber and each and every part thereof has been cupped, worked and otherwise used, for the full period of four years, from the winter during which the cups are hung and until all the turpentine, scrape and dip have been gathered from the fourth working." (Italics and numbers supplied.)

It will be observed that the lease made on August 9, 1929, did not require the grantees to commence working all of the timber on the lands on or prior to January, 1930; but that they commence cupping, working, and otherwise using for turpentine purposes the timber "they may desire, or their business may acquire, not later than January 1930"; and having commenced to work, to "continue to cup, work and otherwise use the same, for the full term of four years *** until all the timber and each and every part thereof has been cupped, worked and otherwise used, for the full period of four years." What, then, was the ultimate period for...