Minshew v. Atlantic Coast Lumber Corp.

• Decision Date: 27 April 1914
• Docket Number: 8826.
• Citation: 81 S.E. 1027,98 S.C. 8
• Parties: MINSHEW v. ATLANTIC COAST LUMBER CORPORATION.
• Court: South Carolina Supreme Court

81 S.E. 1027

98 S.C. 8

MINSHEW v. ATLANTIC COAST LUMBER CORPORATION.

No. 8826.

Supreme Court of South Carolina

April 27, 1914

Appeal from Common Pleas Circuit Court of Marion County; J. W. De Vore, Judge.

Suit by O. G. Minshew against the Atlantic Coast Lumber Corporation. From a judgment for plaintiff, defendant appeals . Affirmed.

Fraser J., dissenting.

The following is the decree of Judge De Vore:

"By reference to the complaint it will be seen that the purpose of the action is to have the deed made by W. A. Wall to R. L. Montague (through whom the defendant claims the title to the timber on the land described) declared null and void, and to have the said deed canceled, for the reason that the defendant failed to begin cutting and removing the timber from said lands within a reasonable time from the date of said deed. The answer of defendant is, first, a general denial, second, an affirmative defense, which consists in alleging the difficulties and expenses, the enormous and gigantic sawmill plant which was necessary to be built in order to manufacture all of the timber holdings of the defendant; the fact that R. L. Montague, the purchaser of this timber, had no sawmill or means of transportation for the timber, etc.

At the hearing of the case I let in all testimony offered by either party subject to all objections noted on the record to be passed upon when I wrote the decision. It will appear from the pleadings in the case there is no question of inadequacy of consideration for the timber, no question of fraud or misrepresentation, no question of any other contract, other than the one involved here, to wit, the deed or agreement from W. A. Wall to R. L. Montague. I therefore sustain all objections to any testimony which proves or tends to prove a different contract to the one involved here, or any testimony which changes or tends to change or vary or add to the contract involved, or any testimony which proves or tends to prove fraud, misrepresentation, or inadequacy of consideration; also, all testimony as to getting legal advice, as I do not regard it competent. The testimony is very voluminous. Yet I have read it with pains and care and great interest on account of the importance of the issue involved, and have undertaken to digest it, and give what weight it is entitled to on the question before me, to wit, what is a reasonable time in which the defendant should begin cutting and removing the timber from the land described in the complaint by reason of the terms of the deed from Wall to Montague, both the plaintiff and the defendant claiming from W. A. Wall. As best I can, and in as fair and just a manner as I am able to do, keeping in mind all the while what is right, just, equitable, and proper with reference to the rights of both plaintiff and defendant, I find as a matter of fact from the competent testimony in the case that the plaintiff is the fee-simple owner of the tract of land described in the complaint (see plaintiff's deed from Wall dated December 4, 1911). I find that on the 24th December, 1898, R. L. Montague became the owner of the timber on this land. (See deed or agreement between Wall and Montague.) I find that by and through other deeds the defendant succeeded to the rights and interest that Montague had in the timber on this tract of land. I find that R. L Montague was quite a timber expert at the time he purchased from Wall. I find that Wall at that time knew very little about the timber business. I find at the time of the Wall deed to Montague that Montague had purchased timber in the counties of Horry, Florence, Williamsburg, Georgetown Berkeley, and Charleston, besides that in Marion. I find that Wall, at the time of this timber contract, knew of no timber holdings or timber contracts by Montague, except in Marion county, and even this only by hearsay (see his testimony). This finding of fact is based on testimony objected to, but I think it competent; that is to say, I find from the testimony that, at the time of the execution of the deed by Wall to Montague, said Montague told him they would put a sawmill somewhere near his timber, and also that one Freeman told him the same thing in substance. This evidence I think is competent on reasonable time, as I shall show as a matter of law. I find that the date of the Wall deed to Montague is 24th of December, 1898. I find that defendant, who claims through the Montague deed, entered upon the land in question to exercise its right under said deed, and cut about 20 or 30 trees. For what purpose the testimony is not clear, but it seems it was for the purpose of preparing to cut and remove the timber therefrom. This was done on or about the 2d of January, 1912. As to the facts set forth in the answer as an affirmative defense, or the evidence introduced to sustain it, I do not think as a matter of law it should have much weight on the question of reasonable time involved here, unless knowledge of those facts be brought home to W. A. Wall at the time or before he made his deed to Montague, and I find as a matter of fact based on the evidence in this case W. A. Wall was ignorant of those facts at that time, except that by hearsay he knew that Montague had bought other timber in Marion county. It seems to me that the above is the only finding on the facts that can be reasonable. Indeed, the testimony to support this finding is uncontradicted, and I could not find otherwise.

Now, with the facts so found, what is the law? The deed of W. A. Wall to R. L. Montague did not fix the time within which Montague, or those claiming through him, must or should commence to cut and remove the timber from the land described therein, and also described in the complaint. In a case where the contract in this respect was identical with the one involved here, the Supreme Court of this state, in reversing my decision to the contrary, said, where the contract fixed no time for cutting and removing the timber, the grantee (Montague in this case) had a reasonable time within which to commence cutting and removing of the timber, from the date of the contract. In the case of Roberts v. Mazeppa Mill Company, 30 Minn. 415, 15 N.W. 680, the court held: 'That the question of reasonable time is determined by all the circumstances of the case--by placing the court and jury in the same position as the contracting parties were at the time they made the contract--that is, by placing before them all the circumstances known to both parties at the time.' The above is the law which should guide me in this case. Let us apply the facts.

What did W. A. Wall at the time of the execution of the deed to Montague know about its being contemplated either by Montague or by the defendant of building mills at Georgetown? Nothing. At that time what did he know of a railroad being constructed from Mullins to Georgetown? Nothing. At that time what did he know of Montague's owning or not owning a sawmill or whether he had means of transportation? Nothing. At that time what did he know about the practicability or impracticability of transporting this timber by rail only? Nothing. At that time what did he know about the necessity of constructing a large and expensive plant to warrant the owner or Montague in purchasing this timber? Nothing. Montague testifies in substance that he knew all of the above facts, or had them in contemplation at the time the deed was made to him by Wall. What information at that time does the competent evidence show W. A. Wall had? He knew from hearsay only that Montague had bought other lands in Marion county, and did not know of his holdings and purchases in other counties. At the time of the execution of the deed he was led to believe from the conversation with Montague and also one Freeman acting for Montague that a sawmill would be located in Marion county somewhere near this timber at an early date. I allowed this testimony for the reason that in my judgment any conversation between the parties at the time of the execution of the deed which does in any way affect the terms thereof is competent for consideration in passing upon the question of reasonable time. Montague possibly would have been justified in concluding 30, 20, or 15 years a reasonable time to commence the cutting and removing this timber with all the knowledge he had of these timber contracts at that time, while Wall possibly would have been justified in concluding 5, 8, or 10 years a reasonable time; but I who am to settle this question must take into consideration what each separately and individually knew at the time the deed was executed. We have, according to the undisputed evidence on the one hand, a man who is an expert in the timber business and in full possession of all the facts and circumstances on the occasion in question connected with this gigantic timber scheme in which he was engaged, making and entering into a contract to purchase timber from Wall, a man, on the other hand, with little or no information when compared with that of Montague. Under those circumstances, where should the hardship fall? Of necessity some one must suffer on account of the contract involved, which I consider a hard contract viewed in any light. I am of the opinion the hardship should fall on him who knew the facts at the time of the contract, rather than upon him who was ignorant of the facts. This being so, I am of the opinion that W. A. Wall under the facts and circumstances, would have easily been justified in concluding 10 years a reasonable time for Montague or those claiming through him to have commenced cutting and removing the timber. As to my own conclusions from the evidence based upon the law, I am of the opinion that 12 years from the date of the deed would have been a sufficient, reasonable time within which

...