Miller v. Smith

• Decision Date: 16 January 1919
• Docket Number: 4 Div. 757
• Citation: 80 So. 833,202 Ala. 449
• Parties: MILLER et al. v. SMITH.
• Court: Alabama Supreme Court

80 So. 833

202 Ala. 449

MILLER et al. v. SMITH.

4 Div. 757

Supreme Court of Alabama

January 16, 1919

Appeal from Circuit Court, Covington County; A.B. Foster, Judge.

Bill by Julia Miller and another against John R. Smith to quiet title to the timber on certain lands, and for a temporary injunction against its cutting and removal. From decree dismissing the bill, complainants appeal. Affirmed.

The title to the land was in one S.T. Miller, who conveyed it by warranty deed to his wife and son, complainants here, on August 29, 1916, without reservation or exception of the timber growing thereon. Respondent claims title to the timber by virtue of his parol purchase thereof from S.T. Miller in July, 1915, the purchase being $90, and that at the time he made the contract he paid $5 on the purchase price and took possession of the land and timber and cut cross-ties during that month from 100 to 140. He then discontinued cutting until July and August, 1916, when he cut about 800 more paying in July $52.40 and August $42.50. On the final submission the trial court denied relief, dissolved the injunction, and dismissed the bill.

J.A Carnley, of Elba, for appellants.

J.D Bailey, of Florala, and Jones, Thomas & Field, of Montgomery for appellee.

SOMERVILLE J.

It is a settled principle of law in this state that a parol sale of standing timber, coupled with a license to enter and cut and remove it, is void under the statute of frauds (Code, § 4289), and is unenforceable in so far as it remains unexecuted. Cobbey-Hinkley Co. v. Jordan, 146 Ala. 634, 41 So. 962; Davis v. Miller-Brent Lumber Co., 151 Ala. 580, 44 So. 639. Such a contract operates only as a license, which is revocable at the pleasure of the grantor, even though a valuable consideration has been paid to him therefor. Hicks Bros. v. Swift Creek Mill Co., 133 Ala. 411, 31 So. 947, 57 L.R.A. 720, 91 Am.St.Rep. 38. And in that case it was held that the grantor's subsequent conveyance of the land to another operates ipso facto as a revocation.

The application of these principles to the instant case must have resulted in a decree for complainants, unless the evidence showed facts which removed the transaction in question from the influence of the statute of frauds.

The learned trial judge in fact found that the timber sale was so removed by virtue of respondent's payment of the purchase money, and the delivery of the property to him; and, on that...