Morris & Company v. Alexander & Company

• Decision Date: 23 December 1929
• Docket Number: 65
• Citation: 22 S.W.2d 558,180 Ark. 735
• Parties: MORRIS & COMPANY v. ALEXANDER & COMPANY
• Court: Arkansas Supreme Court

22 S.W.2d 558

180 Ark. 735

MORRIS & COMPANY v. ALEXANDER & COMPANY

No. 65

Supreme Court of Arkansas

December 23, 1929

Appeal from Greene Chancery Court; J. M. Futrell, Chancellor affirmed.

Decree affirmed.

M P. Huddleston, for appellants.

D G. Beauchamp, for appellees.

OPINION

MEHAFFY, J.

On January 2, 1901, Alexander and others executed a deed of conveyance to certain lands therein described to the National Box Company, and the National Box Company thereafter conveyed to Morris & Company. The appellants occupied the lands conveyed until the first of October, 1921. On that date appellants and the National Box Company and G. L. and Lillie R. McDonald brought suit in the Greene Chancery Court praying for the construction of the deed executed of January 2, 1901.

The appellants contended that, under a proper construction of the deed, it operated as a conveyance of the lands therein described in fee simple to the National Box Company, the grantor of appellant, and that action in the chancery court was instituted to have the title of appellant to the land confirmed. The defendants in that suit, Alexander and others, contended that a proper construction of the deed is that it conveyed only the right to remove the timber, and that the right to remove the timber had terminated by the removal of the timber. The case was tried in the Greene Chancery Court, and the court held that the deed operated as a conveyance of the lands in fee simple to the National Box Company. An appeal was taken to this court, and on November 23, 1925, this court reversed the decree of the Greene Chancery Court, and, among other things, said:

"Our conclusion is that the deed before us conveyed an estate upon limitation, and that, upon the happening of the event, namely, the removal of the timber, the estate terminated and reverted to the grantors or their heirs. Such being the case, the decree of the chancery court was erroneous, and the same is reversed, and the cause remanded with directions to enter a decree in favor of appellants in accordance with this opinion." Alexander v. Morris & Co., 168 Ark. 31, 270 S.W. 88.

The facts in the original suit and the deed of conveyance will be found in the statement in the above case, 168 Ark. 31, 270 S.W. 88, and will not be copied here.

When the case came on for trial again in the Greene Chancery Court, on April 6, 1925, both parties being present, the cause was submitted and heard on the original complaint of plaintiff and exhibits thereto, the original answer and cross-complaint of defendants and exhibits thereto, and the mandate of the Supreme Court in said cause. The chancery court in its decree stated that the time had expired for the removing of the timber, and adjudged and decreed that the complaint of the plaintiffs be dismissed for want of equity, and the prayer of the cross-complaint of defendants and cross-complaints be granted, and that all the right, title and interest held or claimed by Morris & Company, National Box Company, G. L. McDonald and Lillie McDonald, or either of them or their grantees under and through the deed sued upon by the plaintiffs to the lands, describing them, be and the same is hereby canceled, set aside and held for naught, etc., and that the plaintiffs or their grantees are forever enjoined from asserting or attempting to assert any interest in said land by reason of said deed.

On August 28, 1926, appellants filed a complaint in the Greene Chancery Court, asking that the case be redocketed, and that the decree be opened and plaintiffs permitted to file their petition for the recovery of betterments to said lands; and if this relief be denied, then they pray that this petition be treated as a bill of review, and that said decree be set aside and plaintiffs be permitted to file their complaint for the recovery of betterments to said lands, and for the recovery of taxes and special assessments; and, if this relief be denied, then plaintiffs pray that this pleading be treated as an original action for the recovery of betterments on said lands, and that they have decree against defendants for the enhanced value of said lands, with interest, and that they be...