Midyette v. Grubbs

• Decision Date: 25 September 1907
• Citation: 58 S.E. 795,145 N.C. 85
• Parties: MIDYETTE v. GRUBBS et al.
• Court: North Carolina Supreme Court

58 S.E. 795

145 N.C. 85

MIDYETTE v. GRUBBS et al.

Supreme Court of North Carolina

September 25, 1907

Appeal from Superior Court, Northampton County; Lyon, Judge.

Action by one Midyette, administrator of W. F. Grubbs, deceased against one Grubbs and another. From a judgment for plaintiff, defendants appeal. Reversed.

It appears: That W. F. Grubbs died on or about June, 1907 intestate, and domiciled in said county of Northampton. The plaintiff is the duly qualified and acting administrator of his estate, and the defendants are his widow and child and only heir at law. That at the time of his death said W. F Grubbs was the owner of certain standing timber, in said county, under and by virtue of three deeds, bearing date in the year 1905, which conveyed to said intestate all the timber, except the oak, standing and growing upon certain lands, properly described and bounded, which would measure 10 inches across the stump at the time of cutting, etc., to him and his heirs and assigns forever, with the right to enter on said lands, build tram roads, etc., and cut and remove said timber at any time, as to the first deed, within eight years from the date, with privilege of two more on certain specified conditions; and, as to the second and third deeds "at any time within five years from the date with the privilege of five more, on certain specified conditions." That the intestate having died holding the interest conveyed to him by said instruments and before the time limited for the removal of the timber had expired, the plaintiff, his duly qualified administrator, brought this action against his widow and heir at law, claiming that the timber standing and growing on said land embraced in the deeds was personal property, and his claim was resisted by the widow and heir at law, claiming that same was realty and as such belonged to defendants. The court being of the opinion that, under and by virtue of the terms of the three deeds, the timber then standing and growing upon the lands therein described was personalty, gave judgment for plaintiff, and defendants excepted and appealed.

With the expiration of the period fixed by a contract of sale of timber for removing it, the title of the timber not then cut reverts to the vendor.

Winborne & Lawrence and S. J. Calvert, for appellants.

Peebles & Harris and W. C. Bowen, for appellee.

HOKE J.

There are courts which hold that in deeds and contracts for the sale of standing timber which evidently contemplate an immediate severance of the timber, or severance within a reasonable time, but conferring no beneficial interest in the soil for the purpose of further growth, such timber shall be considered as personalty, and the validity and effect of contracts concerning it shall be construed and treated in most respects as affecting that kind of property. 2 Page on Contracts, p. 992; Ewell on Fixtures (2d Ed.) 45; Id. 12; McClintock's Appeal, 71 Pa. 365; Huff v. McCauley, 53 Pa. 206, 91 Am. Dec. 203; Marshall v. Green, 1 C. P. Div. 39. In Page on Contracts, pp. 991, 992, the author, after saying that growing trees other than trees in a nursery are held in most jurisdictions to be realty, and that a contract for the sale of growing timber as such to be removed by the vendee is within the clause of the statute of frauds, requiring contracts concerning land to be in writing, states the doctrine maintained by the courts above referred to as follows: "Some American courts follow the rule which, after much vacillation, was finally adopted by the English courts, that if the parties in contracting contemplate the sale of growing trees solely as chattels, and do not intend that they shall remain attached to the realty for an indefinite or unreasonable time, and do not intend that they shall derive a benefit from allowing them to remain attached to the realty, the contract is not within this clause of the statute. Some jurisdictions hold that, if the contract for the sale of growing trees contemplates an immediate severance of them from the soil, they are to be treated as personalty, and hence not within this clause of the statute; while, if they are to be removed at the discretion of the vendee, they are realty, and within the statute." And the English rule to which reference is made is thus stated by Lord Coleridge, in the case of Marshall v. Green, 1 C. P. Div. 39, and, quoting from Sergeant Williams in Saunders' Reports of the case of Duppa v. Mayo: "The principle of these decisions appears to be this: That, wherever at the time of the contract it is contemplated that the purchaser should derive a benefit from the further growth of the thing sold from further vegetation and from the nutriment to be afforded by the land, the contract is to be considered as for an interest in land; but, where the process of vegetation is over, or the parties agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold, and the contract is for goods." Some of the decisions have gone so far as to hold that, although the time limited for the removal of the timber may have expired, if the vendee afterwards enters and cuts and removes the timber, the vendor might sue him and recover damages for breaking the close by action in the nature of trespass quare clausum fregit, but he could not recover the value of the timber.

The views announced in these decisions have not prevailed with us. On the contrary, this court has uniformly held that standing or growing timber is realty, and that deeds and contracts concerning it are governed by the laws applicable to that kind of property. Brittain v. McKay, 23 N.C 265, 35 Am. Dec. 738; Whitted v. Smith, 47 N.C. 39; Ward v. Gay, 137 N.C. 397, 49 S.E. 884. In some of our former decisions there was intimation given that in contracts of this kind, where the growing timber was absolutely conveyed and the time of removal was limited to a definite number of years, that the effect of such a contract was to create a lease, but in Bunch's Case, 134 N.C. 116, 46 S.E. 24, decided intimation was given that such a construction of the contract was not the correct one, and in Hawkins' Case, 139 N.C. 160, 51 S.E. 852, the court decided that such an instrument was not a lease, but "conveyed a present estate of absolute ownership in the timber, defeasible as to all timber not removed within the time required by the terms of the deed." Hawkins' Case, ...