Land v. Cooper

• Decision Date: 23 November 1945
• Docket Number: 2 Div. 214.
• Citation: 24 So.2d 436,247 Ala. 397
• Parties: LAND et al. v. COOPER et al.
• Court: Alabama Supreme Court

24 So.2d 436

247 Ala. 397

LAND et al. v. COOPER et al.

2 Div. 214.

Supreme Court of Alabama

November 23, 1945

Rehearing Denied Jan. 31, 1946.

Adams & Gillmore, of Grove Hill, for appellants.

W H. Lindsey, Jr., of Butler, and Howard Scott, of Chatom, for appellees.

The timber contract is as follows:

'The State of Alabama,

'Choctaw county.

'For and in consideration of Two-Thousand ($2000.00) Dollars, to us in hand paid by The Long Bell Lumber Company, the receipt of which is hereby acknowledged, we convey and warrant to the Long Bell Lumber Company six-hundred-sixty-six thousand (666000) feet of timber to be selected by The Long Bell Lumber Company standing, lying or being on the lands in Choctaw County, Alabama, described as follows, to-wit: NE 1/4 of NW 1/4 and NW 1/4 of NE 1/4 of Sec. 6, Tp. 12, Range 4 West, and W 1/2 of NE 1/4 and E 1/2 of NW 1/4 of Section 19 Township 13, Range 4 West, and NW 1/4 of NW 1/4 and N 1/2 of SW 1/4 and SW 1/4 of SW 1/4, Section 31, Township 13, Range 4 West, W 1/2 and SW 1/4 of NE 1/4 of Section 25, Tp. 13, Range 5 West, and W 1/2 of SE 1/4 and SE 1/4 of Section 25, Tp. 13 Range 5 West, and Fractional A & B, or all of Section 26, Township 13, Range 5 West in the State of Alabama, and Fractional A, or all that part of NE 1/2 of NE 1/4 of Section 35, Township 13, Range 5 West in the State of Alabama, and NE 1/4 of NW 1/4 of SE 1/4 of Section 36, Township 13, Range 5 West.

'It is agreed and understood that the Long Bell Lumber Company or its successors or assigns shall have five (5) years from date of this conveyance to cut, manufacture and remove said timber from said lands and that they are to have all rights ingress and egress over and upon said lands that are necessary and convenient in the cutting, manufacturing and removal of said timber, with the further right to erect saw mills and stock pens and other necessary buildings and to construct roads of any kind, in, on and over said lands that may be necessary or convenient in the cutting, manufacturing and removal of said timber.

'It is further agreed and understood that the Long-Bell Lumber Company or its successors or assigns shall have the right to enter and re-enter said lands for such purpose and that the cutting of a part of said timber shall not be in any way construed as an abandonment of the rights herein conveyed.

'It is further understood and agreed that when the six-hundred-sixty-six thousand (666000) feet of said timber has been cut and removed from said lands that the Long Bell Lumber Company, its successors or assigns shall have the right to cut other and additional timber from said lands for which it agrees to pay $3.00 per thousand feet as and when the logs there from are delivered and scaled at its sawmills.

'It is further agreed and understood that any amount of timber cut by the Long Bell Lumber Company, its successors or assigns above the six-hundred-sixty-six thousand (666000) feet provided in this conveyance shall be entirely optional with the said Long Bell Lumber Company.

'It is further agreed and understood that if The Long Bell Lumber Company exercises its option to cut additional timber from said land over and above the six-hundred-sixty-six thousand (666000) feet as above provided, for that the Long Bell Lumber Company shall pay to Robert Land the $3.00 per thousand feet above provided for until he, the said Robert Land shall have been paid the sum of Seven-Hundred ($700.00) Dollars, with interest at the rate of 8 per annum from date of this deed, and should The Long Bell Lumber Company, its successors or assigns take advantage of its option herein to cut additional timber from said lands over and above that provided for herein above it agrees to pay the said W. P. Cooper and wife I. D. Cooper at the rate of $3.00 per thousand feet when delivered and scaled at The Long Bell Lumber Company's mills.

'It is further agreed and understood that the grantors herein shall pay all taxes that are now due and to become due on said lands and timber.

'It is further agreed and understood that the measurements of said timber shall be made in accordance with Doyle Log Rule.

'Witness our signatures this the 28th day of October, 1937.

'W. P. Cooper,

'Mrs. I. x D. Cooper her mark.

'Robert Land.'

THOMAS Justice.

The respective parties agree upon the facts and the provisions of complainants' paragraph seven are indicated below. The contract for the sale of timber of date of October 28, 1937, will be set out.

The 1943 amendment of Title 7, § 742, Code 1940, inserted the words 'or by the executor or administrator of any vendee, by his heirs or devisees', to the statute authorizing redemption as it comes to us from Code 1923, § 10155 et seq., Code 1940, Tit. 7, § 742 et seq. The recent construction of the statute is found in Land v. Cooper et al., 244 Ala. 141, 12 So.2d 410, 412, where the recent rule is stated:

'It is well established in this state that the statutory right of redemption is neither property, nor the right of property; that it is not subject to levy or sale as such under execution and that it is a right or privilege personal to the debtor. This principle has been recognized in many decisions of this court and is now embraced in our statutory law. Section 743, Title 7, Code 1940; McDuffie v. Faulk, 214 Ala. 221, 107 So. 61; Powers et al. v. Andrews, 84 Ala. 289, 4 So. 263.

'The question as to whether or not those persons who are given the right to redeem under the terms of Sections 727 and 742, Title 7, Code of 1940, may be substituted as parties complainant, where the original complainant dies after filing suit to redeem from mortgage foreclosure sale, is not necessary to the decision of this case.'

What then are the facts as contained in the instant pleading to which demurrer was overruled?

The original bill was filed by L. M. Cooper against Robert Land and John Land, seeking a decree declaring a mortgage foreclosure premature and to exercise his equity of redemption; or, if the foreclosure be held valid, permitting complainant to exercise his statutory right of redemption. L. M. Cooper thereafter died, intestate, and his administrator and heirs at law were substituted as complainants. As last amended, complainants-appellees are the heirs at law and the administrator of L. M. Cooper. Respondents-appellants are Robert Land and John Land.

The facts are that in 1934 W. P. Cooper owned a tract of land embracing 1206 acres, described in the bill. On July 5, 1934, he executed a mortgage thereon to the Executor of J. R. Land for $3566.96, which was later acquired by Robert Land, individually. The debt secured by the mortgage was due November 1, 1934, and there is no allegation that the maturity date of the debt was ever extended by the mortgagee. On October 28, 1937, W. P. Cooper and his wife and Robert Land executed a timber contract to Long Bell Lumber Company, a copy of which is attached to the original bill as an exhibit. The same instrument appears as Exhibit C to the amended bill. The outcome of this litigation turns on the legal effect of this instrument.

By the terms of this contract, said Cooper and Land, for a consideration of $2,000.00, convey and warrant to Long Bell Lumber Company 666,000 feet of timber, to be selected by Long Bell from the lands mentioned above, and being that embraced in the mortgage. Long Bell was granted five years within which to remove said timber. It was further stipulated that when the 666,000 feet had been cut and removed, Long Bell 'shall have the right to cut over and additional timber from said lands for which it agrees to pay $3.00 per thousand feet as and when the logs therefrom are delivered and scaled at its sawmills.' That the cutting of such additional timber is made 'entirely optional' with Long Bell. That if Long Bell shall cut such additional timber, it shall pay to Robert Land the $3.00 per thousand feet until Land shall have been paid $700.00 with interest at 8% from October 28, 1937. Then if additional timber is cut, the payments shall be made to Cooper. No time limit is stipulated for exercise of this 'option.' Does the five-year limitation relate to the 666,000 feet alone, or to the cutting that may be done under the option? It is to be noted that the option to cut additional timber becomes operative 'when the 666,000 feet (sold outright) has been cut and removed.' But the contract is silent as to how long it continues. The mortgage is not mentioned in the contract.

The amended bill (¶7) alleges, with respect to this contract 'That the said Long Bell Lumber Company has failed and refused to exercise its right and option to cut any timber from said land since the completion of the cutting of the aforesaid 666,000 feet of logs and that said contract does not expire until 5 years from the date of same, viz: October 28, 1937; and that Long Bell Lumber Company had at the time of the foreclosure of the mortgage, hereinafter referred to, and at the time of the filing of this bill of complaint the right to go on said land and cut timber and pay to Robert Land stumpage therefor at the rate of $3.00 per thousand feet until the said Robert Land has been paid the sum of $700.00, with interest thereon at the rate of 8% per annum from the 28th day of October, 1937, and that when the said Robert Land has been paid the said...