Mcnair & Wade Land Co. v. Adams

• Decision Date: 20 November 1907
• Citation: 45 So. 492,54 Fla. 550
• Court: Florida Supreme Court
• Parties: McNAIR & WADE LAND CO. v. ADAMS et al.

45 So. 492

54 Fla. 550

McNAIR & WADE LAND CO. v. ADAMS et al.

Florida Supreme Court

November 20, 1907

In Banc. Appeal from Circuit Court, Taylor County; Bascom H Palmer, Judge.

Bill by F. M. Adams and Mahana Adams against the McNair & Wade Land Company. Decree for complainants, and defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

While it is a well-settled rule that parol evidence is not admissible to vary or contradict the terms of a written instrument, and that a written contract which is intelligible on its face must control, yet it is equally true that parties to a written agreement may prove facts consistent with the agreement, although not expressed in it.

In construing a deed, the design of the maker must be gathered from the whole instrument. The subject-matter embraced in the instrument, the intention of the parties, and the conditions surrounding them may be considered. If clauses in the instrument are repugnant to each other, they must be reconciled, if possible, and the intent, and not the words is the principal thing to be regarded.

Parties may make a contract whereby one would be entitled to a perpetual right to enter upon the land of another and remove growing timber therefrom; but, as such an agreement is so unreasonable in its anture, no contract will be held to have this effect, unless it is so plainly manifest, from the terms of the same, that such was the intention of the parties.

In determining what would be a reasonable time to be allowed the purchaser of growing timber to remove the same, all the facts and circumstances of the case and the conditions surrounding the parties at the time of the execution of the contract of purchase should be considered. The question of what is a reasonable time is not to be determined by the will of the grantor.

COUNSEL Kay, Doggett & Smith and Hendry & McKinnon, for appellant.

Clarke & Clarke and T. B. Adams, for appellees.

OPINION

PARKHILL J.

On the 13th day of August, 1900, the appellees executed a deed which purports, for the sum of $400, to convey to the appellant company 'and their heirs and assigns, forever, all that certain tract or parcel of timber, lying and being in the county of Taylor and state of Florida, described as follows Being on the following described lands, to wit: East half of northeast quarter and north half of southeast quarter and north half of southwest quarter and southwest quarter of southwest quarter and north half of southeast quarter of southwest quarter of section ten (10), township five (5) south, of range eight (8) east, containing three hundred acres more or less, with the right to enter upon said land with full turpentine and mill privileges, to wit: First to turpentine said timber, and then to use same for milling purposes. The said party of the first part reserves the right to use such of said timber as will be necessary to keep in repair the fences on his present farm and to use such board timber as he may need for repair of buildings on said farm.' It is a deed with full warranties.

On the 20th day of September, A. D. 1906, the appellees (complainants below) filed a bill in the chancery court alleging that they were the owners of the above-described lands; that the McNair & Wade Land Company offered to buy the timber growing thereon, representing to complainants that it had purchased other timber near by and adjoining complainants' said land; that it was contemplated and intended by the parties that the pine timber should be worked for turpentine purposes before being cut and utilized for milling purposes; that complainants sold the timber growing upon said land by deed above mentioned, to be used for said purposes; that while no time is specified in the written agreement within which the said timber should be cut and removed from said lands, yet it was understood and agreed by and between the complainants and defendant at and before the execution of said conveyance that the same should be cut and removed within a reasonable time, and at most within four years from the date thereof; that the representations and prior agreement that said timber should be cut and removed from said lands within a reasonable time entered into and was a part of the consideration inducing complainants to sell the timber to defendant; that, relying upon said representations and agreement, complainants sold the said timber to the defendant company.

The bill further alleges 'that under a proper construction of said deed the defendant was in duty bound to cut and remove said timber within a reasonable time after the purchase of the same, and that in default thereof the right to enter upon complainants' land to cut and remove said timber would be forfeited'; that a reasonable time within which to cut and remove said timber has elapsed, but defendant company has not commenced to work said timber for turpentine purposes, and has taken no steps to cut and remove said timber from complainants' said land; that complainants have paid taxes on said land all this time, and protected said timber from fire and trespassers, and have been deprived of the use of said land; that the market value of said land has been practically destroyed by failure of defendant to cut and remove the timber; that complainants have tendered to defendant the consideration paid by defendant for said timber, with legal interest thereon, but defendant declined and refused to accept the same, contending that, under the terms of said conveyance, the time within which defendant may cut and remove said timber is perpetual and unlimited. The bill prayed for a cancellation of the conveyance of said timber. The defendant demurred to this bill, and the chancellor overruled the demurrer; and from this order the defendant appeals.

The only grounds of the demurrer to be considered are those argued here, as follows: That the bill seeks to vary a solemn written instrument under seal by parol testimony; that the bill...