J.M. Card Lumber Co. v. Ozment

• Decision Date: 16 April 1914
• Docket Number: 452
• Parties: J.M. CARD LUMBER CO. v. OZMENT.
• Court: Alabama Supreme Court

65 So. 792

187 Ala. 237

J.M. CARD LUMBER CO. v. OZMENT.

No. 452

Supreme Court of Alabama

April 16, 1914

Rehearing Denied July 2, 1914

Appeal from Tuscaloosa County Court; H.B. Foster, Judge.

Bill by J.A. Ozment against M.G. Mills and others. Decree for complainant, and defendant J.M. Card Lumber Company appeals. Affirmed.

Oliver Verner & Rice, of Tuscaloosa, for appellant.

P.B Traweek, of Tuscaloosa, for appellee.

McCLELLAN J.

This bill, filed by appellee against M.G. Mills and the appellant company and J.W. Carson, Mills' trustee in bankruptcy seeks the enforcement of an equitable mortgage or lien on certain timber rights and certain manufactured timber (cut into merchantable lumber) upon or taken from the lands of the appellee. The basis of the right complainant asserts is an instrument executed July 30, 1910, by complainant and his wife, on the one part, and M.G. Mills, on the other. Complainant was the owner of a considerable area of timber lands. Mills appears to have been a sawmill operator. The instrument, with all formality necessary to convey an interest in realty, conveys all of the timber of a certain kind on certain lands to Mills, "in accordance with the terms, conditions and stipulations" therein set forth. Mills was to pay $4,000 for the timber; $1,000 in cash (which was paid), and the remaining $3,000 was to be paid in 20 monthly installments "as evidenced by his 20 several promissory notes, *** each for the sum of $150," payable on the 1st day of February, 1911, and on the 1st day of each succeeding month until all were paid. In the instrument provision was made for a mill site, adjacent to a railroad and for roads, etc., over the complainant's lands to afford the means for "cutting, loading, hauling, and transporting said trees and timber or the products therefrom." It was also provided in the instrument that:

"If the party of the second part [Mills] shall at any time sell or transfer his rights hereunder, or if he shall fail to pay any one or more of the purchase-money notes hereinbefore mentioned, when the same become due, then the parties of the first part [Ozment and his wife], their agents, legal representatives, or assigns, shall have the right to declare all said payments or notes due and payable at once, and they shall all then be due, and parties of the first part shall have a lien upon all timber, logs, or lumber cut or taken from lands under this contract, as well as a lien on the grantee's timber rights therein conveyed as security for the payment of said notes, which lien may then be enforced immediately: To have and to hold the above-mentioned timber and other rights unto the party of the second part, his heirs and assigns, for the time or times and according to the terms and conditions hereinbefore set forth."

Time limits, for different tracts, were fixed for the exercise of the rights granted. The instrument was appropriately and properly recorded in Tuscaloosa county, wherein the land lies.

Mills made default in the installment due October 1, 1911, and thereupon complainant, as under the agreement he might do matured the remaining notes.

It is insisted that complainant should be concluded in consequence of the estoppel in pais effected by his consciously allowing Mills to dispose in regular and long-continued course of dealing with the product drawn from these timber rights, including that in question which the company claims to have purchased and received the title to from Mills. The pleading does not raise or present this inquiry. Estoppel must be specially pleaded if it does not affirmatively appear from the face of the bill. Jones v. Peebles, 130 Ala. 269, 30 So. 564.

The other matter urged is that the contract lien established by the instrument is fraudulent and void as against creditors for that the lienor (Mills) retained possession of the subject of the lien or charge. The exact question was decided against appellant's contention in Adkins v. Bynum, 109 Ala. 281, 19 So. 400. The soundness of its doctrine has been since recognized and reaffirmed in the following decisions delivered here: Glass v. Tisdale, 106 Ala. 581, 19 So. 70; South Ala. Oil Co. v. Garner, 112...