McRae v. Stillwell
| Decision Date | 06 June 1900 |
| Citation | 36 S.E. 604,111 Ga. 65 |
| Parties | McRAE v. STILLWELL et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. An instrument in the form of a deed purported to convey to named grantees, their heirs and assigns, at a specified price per acre, "all the pine timber suitable for sawmill purposes" on described lots of land. It acknowledged receipt of a specified sum, and recited that the grantor agreed "that the amounts left unpaid this day shall be paid as follows: When each lot is entered to cut said timber the balance due on each lot is one hundred dollars, which will be due as above stated." The instrument also purported to convey to the grantees, their heirs and assigns "the full right of way for railroads, tramroads, and wagonroads in and through the said lands for the purposes above stated; said right of way to continue as long as said mill operations may require." Held: (a) That the true intent and meaning of this instrument was to convey to the grantees, their heirs and assigns, all the timber suitable at the date of the instrument for the purposes indicated, but that it was incumbent on the grantees, or their successors in title, to cut and remove such timber from the lots within a reasonable time from the date of the conveyance, and that on failure so to do their interest in the timber ceased and determined; (b) that what would be a reasonable time for so doing was a question of fact to be passed upon and decided in the light of all the facts and circumstances surrounding the transaction; (c) that inasmuch as the instrument in question conveyed an interest in realty though the estate was determinable, it was entitled to be recorded, and, if duly recorded, it was admissible in evidence without proof of execution; (d) that, under such an instrument, payment of the balance of the purchase money due on each lot was not a condition precedent to the right to enter and cut the timber.
2. Where a grant was made to a partnership composed of two persons, even if a conveyance by them of the property therein described was not properly executéd if only signed by the partnership, yet where such conveyance purported to be to another partnership, composed of these two persons and another, if the latter partnership conveyed the property by a deed executed by each of the three partners, and also signed in the firm name, the title to the property passed to the grantee named in that conveyance.
3. As the trial judge did not properly construe the instrument referred to in the first of the above notes, and as the case was tried under a misapprehension of its true intent and meaning, the judgment directing a verdict for the plaintiffs was erroneous, and there should be another hearing in the light of what is here laid down.
Error from superior court. Montgomery county; C. C. Smith, Judge.
Action by Stillwell, Millen & Co. against John McRae and others. Judgment against defendant McRae, and he brings error. Reversed.
W. G. Brantley and J. H. Martin, for plaintiff in error.
A. C. Wright, for defendants in error.
Stillwell, Millen & Co. brought suit against McRae and others, alleging in their petition that the defendants had damaged them by cutting large quantities of pine timber, the property of the plaintiffs, which was growing on a described lot of land, and that the defendants were still cutting such timber. The prayer of the petition was that the defendants be enjoined from cutting the timber, and from removing or otherwise interfering with that which had already been cut. The defendant McRae appeared and answered the petition, and assumed responsibility for the acts of the other defendants, and the case proceeded against him alone. At the trial the court directed the jury to find a verdict that the defendant be perpetually enjoined from cutting the timber on the land, and that the plaintiffs recover of the defendant a given sum; it being agreed by counsel that, if the plaintiffs were entitled to recover at all, the amount for which the court directed a verdict was the proper sum. The defendant filed a bill of exceptions, assigning error upon the decision of the court directing a verdict in favor of the plaintiffs, and also upon other rulings made during the progress of the trial.
1. The plaintiffs claimed title to the timber as the successors in title of Peacock & Peterson, who were the grantees in a deed from the defendant McRae. The paper was in form a deed, and, in consideration of 75 cents per acre, purported to convey "all the pine timber suitable for sawmill purposes" on eleven described lots of land, each containing 202 1/2 acres. The paper also contained the following clauses: It is contended by the plaintiffs that, as they are the successors in title of the grantees in this deed, they are the owners in fee of the timber described in the deed, and that, while they are not the owners of the fee in the land, they have such an interest in the land itself as is necessary for the support and nurture of the trees, which are their property; that they have the right to enter upon the land whenever they desire to remove these trees for the purposes indicated in the deed, and lapse of time does not at all interfere with this right. On the other hand, the defendant contends that while the effect of the conveyance was to pass to the grantees and their successors in title an absolute interest in the trees, construing the paper as a whole it was not the intention of the parties that the grantees should have a perpetual right to enter and remove the standing timber on the land, and that their estate in the trees was by the very language of the conveyance determinable if the trees were not removed from the land within a reasonable time after the deed was executed. The court gave to the deed the construction contended for by the plaintiffs, and refused to allow the defendant to introduce evidence tending to show that a reasonable time to cut and remove the trees had elapsed. Counsel for defendant (the plaintiff in error here) contended that the estate of the plaintiffs in the trees had determined, and the title to the same become revested in the defendant, and that, this being true, the acts complained of in the petition did not constitute any wrong as against the plaintiffs.
Counsel for plaintiffs (defendants in error here) contend that this case is controlled by the decision in Baxter v Mattox, 106 Ga. 344, 32 S.E. 94, and it appears from the record that the judge placed his ruling in construing the deed upon that decision. We think, however, there is a clear distinction between the two cases. The deed in that case conveyed the timber and growing trees "suitable for sawmill purposes, and being manufactured into lumber, now upon, or that may hereafter grow upon," the land, and also conveyed to the grantee, his heirs and assigns, the right and privilege "now and at any and all times hereafter" to enter upon the land for the purpose of cutting such timber. The terms of that deed clearly manifested an intention on the part of the grantor to convey to the grantee a perpetual right to enter upon the land and cut and remove the timber and trees,--not only the trees that were growing at the date of the conveyance,...
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