Kendall v. J. I. Porter Lumber Company

• Decision Date: 29 June 1901
• Parties: KENDALL v. J. I. PORTER LUMBER COMPANY
• Court: Arkansas Supreme Court

64 S.W. 220

69 Ark. 442

KENDALL v. J. I. PORTER LUMBER COMPANY

Supreme Court of Arkansas

June 29, 1901

Appeal from Jefferson Circuit Court, ANTONIO B. GRACE, Judge.

Judgment affirmed.

White & Altheimer, for appellant.

To constitute a valid sale, there must be a delivery. 63 Ark 10. A contract for sale of standing timber carries no interest in the land. 45 Mass. 583; 9 Barn. & Cress. 561; 3 Day, 484; 7 Greenleaf, 447; 1 Metc. 313; Chitty, Contr. (5 Am. Ed.), 300 302; 1 Greenleaf, Ev. § 271. Trees, when cut and carried away, become personal property. 79 Mass. 502; 4 Metc. 580; 8 Metc. 34; 81 Mass. 444; 1 Benj. Sales, § 117; Greenleaf, Ev. § 271. The record of an instrument unauthorized is not notice of contents. 1 L. R. A. 192; 79 Mass. 502. Plaintiff had no authority to sue. 14 Ark. 431; 1 Corbin, Benj. Sales, 140. Kendall was not a proper party. Sand. & H. Dig., §§ 1577-79. The testimony of Godfrey was incompetent.57 Ark. 297; 119 U.S. 103.

Austin & Taylor, for appellee.

The record of the instrument was notice. Sand. & H. Dig §§ 727; 6370; Tied. Real. Prop. § 10; 1 Kerr Real. Prop. § 56; 35 Miss. 700; 69 Am. Dec. 744; 46 Md. 509; 44 Ark. 210; 55 Ark. 307; 65 Ark. 448.

BATTLE J. BUNN, C. J., absent.

OPINION

BATTLE, J.

On the 27th day of March, 1899, the J. I. Porter Lumber Company, a corporation, brought this action against Frank Kendall to recover of him the value of 175 pine trees, of the total value of $ 175. It alleged in its complaint that it was the owner of 125 pine trees on the north half of the northeast quarter of the northwest quarter of section 2 in township 7 south and in range 11 west, and 50 pine trees on the south half of said northeast quarter of said northwest quarter of section 2, and that the defendant wrongfully and without right or authority cut and removed from the land the pine trees so owned by it; and asked for judgment against the defendant for $ 350,--double the value of the trees.

The defendant answered, and denied that plaintiff was the owner of the trees growing upon the north half of the northeast quarter of the northwest quarter of section 2, and alleged that he was the owner thereof, and, under his claim of ownership, entered upon the land and cut and carried away 159 pine tress. He denied that he entered upon and cut and removed timber from the south half of the northeast quarter of the northwest quarter of section 2. He alleged that plaintiff unlawfully cut and carried away 395 pine trees, which were his property, and of the value of $ 395, and converted them to his own use; and asked for judgment against the plaintiff for double their value.

Plaintiff replied, and denied all the allegations in the answer which set up a cross-demand against it.

In the trial which followed, it was shown that William Godfrey, who was sometimes called William McGehee, was the owner of the north half of the northeast quarter of the northwest quarter of section 2, and that he acquired title to the same by a patent from the United States, which conveyed the land to him by the name of William McGehee, and that W. A. Godfrey was the owner of the south half of the same tract of forty acres. On the 6th of April, 1896, William Godfrey, by the name of William McGehee, conveyed to the plaintiff all the pine trees on the land owned by him in section 2, with the right and authority to cut and remove the same at any time within 6 years; and on the 8th day of November, 1898, W. A. Godfrey conveyed to plaintiff all the pine trees on the land owned by him as before stated, with the power and authority to cut and remove the same within 2 years. Both deeds were duly acknowledged, and the former was filed for record on the 5th of May, 1896. On the 11th day of March, 1899, William Godfrey, alias McGehee, conveyed to the defendant "the exclusive privilege for one year to cut, haul away and remove pine trees" from the north half of the northeast quarter of the northwest quarter of section 2. The deed by which it was conveyed was acknowledged, and was filed for record on the 13th of March, 1899. At the time Godfrey executed this deed he informed the defendant that he had already conveyed the same pine trees to the plaintiff. On the 14th day of March, 1899, W. A. Godfrey conveyed to the Sand Creek & Sulphur Springs Railroad Company "a right of way 100 feet wide, the middle thereof to be the center of track of said road, through and across" the land owned by him in section 2.

The defendant admitted in his answer that he cut and carried away 159 of the trees conveyed to the plaintiff by William Godfrey, alias McGehee. Evidence was adduced tending to prove that 125 of this number were worth $ 125; and that he cut and converted to his own use 50 of the trees conveyed to plaintiff by W. A. Godfrey, and that the same were reasonably worth $ 50.

Evidence was adduced in behalf of the defendant tending to prove that William Godfrey, alias McGehee, at the time he told him that he had already conveyed to the plaintiff certain pine trees, also informed him that the time allowed for the cutting and removing the same had expired; that he searched the records diligently for a deed from Godfrey to the plaintiff, but found none; that a part, if not all, of the timber cut by him on the south half of the northeast quarter of the northwest quarter of section 2 was on the right of way conveyed to the Sand Creek & Sulphur Springs Railroad Company by W. A. Godfrey, and was cut by permission of the railroad company; and that the plaintiff and defendant entered into a contract by which it was agreed that plaintiff should cut the timber of the defendant on certain lands, and that the defendant should cut the timber of the plaintiff on certain other lands, and that each should keep an account of the timber cut by it or him, and render a statement of the same to the other, and that the one cutting the most timber should pay to the other the difference in the quantity cut by each at the rate of 50 cents per 1,000 feet; and that plaintiff cut of the defendant's timber, under this contract, 118,000 feet and defendant's 110,000 making a difference in favor of the defendant of 8,000 feet, for which the plaintiff owed him, according to their contract, $ 4. None of the timber exchanged under this contract was a part of the pine trees sued for by the plaintiff.

Upon this evidence the court instructed the jury that tried the issues in the case, in part, over the objections of the defendant, as follows:

"No. 1. In the first case the complaint alleges that the plaintiffs were the owners of the pine timber growing on the north half of the northeast quarter of the northwest quarter of section 2, township 7 south, range 11 west, and that the defendants entered upon the said lands and took therefrom 125 trees of the value of $ 125. The answer admits the taking of these trees by the defendants from this land, but justifies the same under a claim of title. As to the timber on this land, you are instructed as a matter of law that the title of the plaintiff, J. I. Porter Lumber Company, to the said trees was paramount to that of the defendants, and your verdict should be for the plaintiff."

And refused to instruct, at the request of the defendants, as follows:

"The jury are instructed that the contract of sale of the timber then standing upon the north half of northeast quarter of northwest quarter of section 2, township 7 south, range 11 west, from William McGehee to J. I. Porter Lumber Company with the license in the J. I. Porter Lumber Company to cut and remove the same, is a contract that is not required by law to be recorded, and the recording of the same did not create constructive notice of the existence of such a contract. And if the jury find from the evidence that the J. I. Porter Lumber Company did not take possession of the said timber or exercise such open, visible, and notorious possession thereof as would put a prudent man upon inquiry as to their rights to the said timber, but left the same in the hands and possession of William McGehee, their vendor, then any person who purchased the said timber from the one in actual possession thereof, without actual notice of any outstanding right, is, in law, an innocent purchaser of the same, and his rights thereto are better than the rights of the J. I. Porter Lumber Company."

And the court instructed the jury, in part, over the objections of the defendant, as follows:

"8. And if you should find that plaintiff took timber from the lands of defendant in section 14 aforesaid, under an agreement of exchange, by which each party was to keep an account of timber taken from the lands of the other, and render to the other an account or statement thereof, and that the one receiving or taking the greater quantity should pay the other for the excess...