Kirby Lumber Co. v. Temple Lumber Co.

• Decision Date: 22 May 1935
• Docket Number: No. 6141.,6141.
• Citation: 83 S.W.2d 638
• Parties: KIRBY LUMBER CO. v. TEMPLE LUMBER CO.
• Court: Texas Supreme Court

83 S.W.2d 638

KIRBY LUMBER CO. v. TEMPLE LUMBER CO.

No. 6141.

Supreme Court of Texas.

May 22, 1935.

Error to Court of Civil Appeals of Ninth Supreme Judicial District.

Suit by the Kirby Lumber Company against the Temple Lumber Company. Judgment of the district court for plaintiff was reversed and judgment for defendant was rendered by the Court of Civil Appeals [42 S.W.(2d) 1070], and plaintiff brings error.

Judgments of the Court of Civil Appeals and district court reversed, and judgment rendered.

T. B. Hamilton, of Hemphill, J. B. Forse, of Newton, and Williams, Lee, Hill, Sears & Kennerly and Andrews, Streetman, Logue & Mobley, all of Houston, for plaintiff in error.

W. T. Davis, of San Augustine, R. E. Minton, of Lufkin, J. W. Minton, of Hemphill, and Baker, Botts, Andrews & Wharton, of Houston, for defendant in error.

CRITZ, Justice.

This suit was filed by the Kirby Lumber Company, a corporation, against Temple Lumber Company, also a corporation, as an action in trover, to recover the manufactured value of one-third of the timber cut by Temple Lumber Company from a certain tract of 427 acres of land in Sabine county, Tex. Trial in the district court with a jury resulted in a verdict and judgment for Kirby Lumber Company for $53,100.98. On appeal by the Temple Lumber Company, the Court of Civil Appeals at Beaumont reversed the judgment of the trial court, and rendered judgment for the Temple Lumber Company. 42 S. W.(2d) 1070. Kirby Lumber Company brings error.

It appears from the opinion of the Court of Civil Appeals, and also from the record, that Thompson Allen was the common source of title to 640 acres of land patented to James S. Ogden in Sabine county, Tex. Allen died leaving six children. Two of these children conveyed their respective undivided one-sixth interest each to John A. Morris, thus vesting him with an undivided one-third interest in the 640-acre tract. The other four children of Thompson Allen conveyed their respective undivided one-sixth interest each to W. W. Weatherred, thus vesting him with an undivided two-thirds interest in the 640-acre tract.

It appears that after Morris and Weatherred became joint owners of the entire 640-acre tract in the proportions of one-third and two-thirds respectively they made a parol partition thereof between themselves; Morris taking 213 acres and Weatherred 427 acres. These respective tracts so partitioned were surveyed and marked on the ground so that each owner knew definitely his own tract. It further appears that at the time of such partition the 640 acres was generally of uniform value as to timber and otherwise. In this connection the record shows indisputably that the timber on the 213 acres partitioned to Morris constituted one-third of the timber on the entire 640-acre tract, and that the timber on the 427 acres partitioned to Weatherred constituted two-thirds of the timber on the entire 640-acre tract.

The further history of the John A. Morris title is as follows:

Morris conveyed his undivided one-third interest to J. O. Toole. Toole conveyed his undivided one-third interest to A. D. Hamilton. Hamilton, joined by John H. Kirby, conveyed the undivided one-third interest to Houston Oil Company. Houston Oil Company conveyed the same interest to Southwestern Settlement & Development Company. Southwestern Settlement & Development Company, joined by Houston Oil Company, conveyed the timber on this undivided one-third interest to Kirby Lumber Company. Every conveyance in the Kirby Lumber Company's chain of title described the land conveyed as an undivided one-third interest in the 640-acre tract.

Weatherred conveyed to Benjamin F. Van Meter the specific 427 acres of land set apart to him in the partition between him and Morris. This deed described the 427 acres so as to identify it in severalty. This deed also contained a statement to the effect that the 427 acres therein conveyed was a part of the James S. Ogden survey of 640 acres, and that the land therein conveyed was all of said Ogden survey, except 213 acres off the east end thereof owned by John A. Morris. This deed then referred to the county records of Sabine county. Van Meter conveyed to C. P. Huntington, and this deed also specifically described and conveyed the 427-acre tract. Huntington conveyed to George E. Downs. The 427 acres were also specifically described in this deed.

As we understand this record, it is then shown that Temple Lumber Company holds title to its two-thirds interest in the Ogden 640-acre survey by mesne conveyances from George E. Downs, which conveyances describe the land as an undivided two-thirds interest in the 640-acre Ogden tract. It thus appears that Temple Lumber Company's chain of title contains some deeds, at the remote end thereof, specifically describing the 427-acre tract set apart to Weatherred, its predecessor in title, and some deeds at the immediate end of its chain describing the interest conveyed as an undivided two-thirds of the original 640-acre tract.

It is further indisputably proven that after Morris and Weatherred made their parol partition, Morris entered into exclusive possession of his 213 acres and cut timber therefrom. Thereafter, Morris sold to Toole, and Toole cut timber therefrom. Both Morris and Toole understood that they owned that specific 213 acres of land. These two parties, as above shown, were Kirby Lumber Company's predecessors in title.

It appears that Temple Lumber Company, in 1924, or about that time, and after it had acquired the title above described, to two-thirds of this 640-acre tract, claimed the 427 acres partitioned to Weatherred in severalty, and began cutting timber therefrom. On learning of such cutting Kirby Lumber Company notified Temple Lumber Company that it owned an undivided one-third of the timber on the entire 640-acre tract, and objected to the Temple Lumber Company cutting any part of the same until a partition could be had between the two companies. Temple Lumber Company seems to have informed the Kirby Lumber Company that it claimed the 427 acres set apart to Weatherred in severalty, and that Kirby Lumber Company owned in severalty the timber on the 213 acres set apart to Morris. Kirby Lumber Company denied that either it or Houston Oil Company, and certain others of its predecessors in title, had any notice of the parol partition between Morris and Weatherred, and very pointedly instructed Temple Lumber Company to desist from cutting timber until a partition could be had between the two companies. Temple Lumber Company disregarded such instruction, and proceeded to cut the timber from the 427 acres set apart to Weatherred, its remote predecessor in title. The suit followed.

The jury found in response to questions submitted to them in the charge of the court:

(1) That at the time the Temple Lumber Company cut the timber on the 427-acre tract there was standing on the 213-acre tract 2,783,325 feet.

(2) That Temple Lumber Company cut and manufactured from the 427-acre tract timber to the amount of 10,000,000 feet.

(3) That the reasonable market stumpage value of the timber cut by Temple Lumber Company was $5 per thousand feet.

(4) That in cutting and manufacturing the timber cut from the 427-acre tract the Temple Lumber Company acted negligently, and in reckless disregard of the rights of the Kirby Lumber Company.

The record shows that the manufactured value of the timber cut from the 427-acre tract by Temple Lumber Company was $29.25 per thousand feet. In fact, the Temple Lumber Company seems to have pleaded this value.

The undisputed record shows that after the parol partition of the 640 acres of land between Morris and Weatherred, Morris went into possession of the 213 acres set apart to him in severalty, and he and J. O. Toole, his successor in title, who had notice of such partition, cut and appropriated timber from such 213 acres in such amounts that if Kirby Lumber Company's interest is charged therewith, Temple Lumber Company has appropriated no more than its proportionate share of the timber from the 640 acres, and this even though it be admitted that it and Kirby Lumber Company are tenants in common as to the timber on the 640 acres.

After receiving the above verdict, the trial court affirmatively found that there had been a parol partition of the 640 acres of land between Morris and Weatherred whereby the 213 acres was set apart in severalty to Morris, the remote grantor of Kirby Lumber Company, but Kirby Lumber Company and several of its predecessors in title were bona fide purchasers without notice of such oral partition. The trial court made no affirmative finding on the question as to whether Kirby Lumber Company or any of its predecessors in title were bona fide purchasers without notice of the timber cut and appropriated by Morris and Toole. Also this question was not submitted to the jury, and neither lumber company requested its submission or excepted to the charge for failure to submit such question. In this condition of the record we will presume that the trial court found on this issue in favor of Kirby Lumber Company.

Based on the above record the trial court entered a judgment on the theory that before the cutting of the timber by Temple Lumber Company the two lumber companies were tenants in common as to all the timber on the 640 acres, in the proportion of one-third to Kirby Lumber Company, and two-thirds to Temple Lumber Company. By this theory the trial court took the sum of 10,000,000 feet of timber cut by Temple Lumber Company on the 427 acres and 2,783,325 feet of timber left standing on the 213-acre tract as the total amount of timber on the 640 acres before Temple Lumber Company began cutting. It was found that the sum of the above two amounts was 12,783,325 feet of timber. It was then found that Kirby Lumber Company's one-third of such timber was 4,261,108 feet. The amount of timber left standing on the 213 acres was considered as belonging...