Morton v. Pine Dumber Co

• Decision Date: 08 October 1919
• Docket Number: (No. 219.)
• Citation: 100 S.E. 322
• Court: North Carolina Supreme Court
• Parties: MORTON et al. v. PINE DUMBER CO.

100 S.E. 322

MORTON et al.

v.PINE DUMBER CO.

(No. 219.)

Supreme Court of North Carolina.

Oct. 8, 1919.

Allen, J., dissenting.

Appeal from Superior Court, Onslow County; Guion, Judge.

Action by Dena Morton, guardian of Ernest Loyd and Junie Loyd, against the Pine Lumber Company. From judgment for defendant, plaintiffs appeal. Reversed.

Civil action to restrain cutting of timber and for damages determined on final hearing before his honor, O. H. Guion, judge, at April Term, 1919, of the superior court of Onslow county. The court was of the opinion that, on the pleadings and exhibits made In the cause, plaintiffs had shown no right to relief, and thereupon adjudged that defendants go without day. Plaintiffs excepted and appealed.

Duffy & Day and E. M. Koonce, all of Jacksonville, and Cowper, Whitaker & Allen, of Kinston, for appellants.

Frank Thompson, of Jacksonville, and L. R. Varser, of Lumberton, for appellee.

HOKE, J. On the hearing it appeared: That on April 8, 1905, John Loyd, owner, with his wife, in consideration of $30, conveyed to the Swansboro Lumber Company the timber of every description of 12 inches and upward standing and growing upon three tracts of land aggregating 103 acres, with right to cut same at any time within 10 years from date of the deed with the privilege of renewal for 10 years on request of grantee, etc., and on payment of $10 annually for said period. For the same consideration for like period, the right to build all necessary tracks and tramways, etc., was also conveyed, with privilege of cutting any timber under said size to be used in construction. In same deed there was also conveyed a permanent right of way for a railroad 00 feet wide over said land and with the stipulation that the owner should not cut during these periods any timber from said land, under the size 12 inches, except what was necessarily required for fencing and further that the parties of the first part should pay all taxes and assessments upon said land and timber so long as the contract should remain in force, etc. That soon after the execution of this deed and contract, John Loyd, the owner, died, leaving him surviving, his widow Dena (now intermarried with Gardock Morton), and two children, plaintiffs in this suit, Ernest Loyd and Junle Loyd, who were then and are now infants. That nothing further was done under the contract until April 6, 1915, when the Swansboro Lumber Company, grantee in the deed, paid to Dena Morton $10 and took a written receipt therefor signed by said Dena and her then husband, Gar-dock Morton, specifying that the same was in payment for one year's extension on the timber deed of Mr. Loyd and wife. And thereafter, to wit, on 25th of March, 1916, the Swansboro Lumber Company having conveyed their interest to the Pine Lumber Company, and Dena Morton having meantime qualified as guardian of plaintiffs, the said Pine Lumber Company paid to said guardian $50 and took a written receipt therefor specifying that same was a payment in full for five years' extension for the right and privilege of cutting said timber.

It appeared further that the said Pine Lumber Company were preparing and intended to cut the timber from said land, claiming that they had the legal right to do so under their deed from the Swansboro Lumber Company and by virtue of the payments referred to.

In a recent case before the court (Lumber Co. v. Wells, 171 N. C. 202, 88 S. E. 327), it was said to be the correct deduction from many of our decisions on the subject, "that standing lumber is realty, " subject to the laws of devolution and transfer applicable to that kind of property, and that lumber deeds, such as this, convey an estate of absolute ownership defeasible as to all timber not cut and removed within the specified period, citing Williams v. Parsons, 167 N. C. 529, 83 S. E. 914; Midyette v. Grubbs, 145 N. C. 85, 58 S. E. 795, 13 L. R. A. (N. S.) 278; Lumber Co. v. Corey, 140 N. C 477, 53 S. E. 300.

And further that stipulations for an extension of time are in the nature of options, and that they do not in themselves create any interest in the property, but amount only to an offer to create such interest when the conditions are performed and working a forfeiture when not strictly complied with. Citing Waterman v. Banks, 144 U. S. 394, 12 Sup. Ct. 646, 36 L. Ed. 479; Thacher v. Weston, 197 Mass. 143, 83 N. E. 360; and other cases. And again that "where * * * the time first provided for" in a deed of this character "has passed, and it becomes necessary for the grantee to hold by reason of the performance of the stipulation for an extension, the estate or interest arises at the time the conditions are complied with, and, in the absence of any provision in his deed to the contrary, the price paid belongs to him who then has the title and from whose ownership the interest is then created. The option or privilege obtained, to the extent of the right conferred,...