O'Neill v. Cooper River Corp.

• Decision Date: 26 January 1918
• Docket Number: 9883.
• Citation: 95 S.E. 124,109 S.C. 35
• Parties: O'NEILL v. COOPER RIVER CORP. ET AL.
• Court: South Carolina Supreme Court

95 S.E. 124

109 S.C. 35

O'NEILL v. COOPER RIVER CORP. ET AL.

No. 9883.

Supreme Court of South Carolina

January 26, 1918

Appeal from Common Pleas Circuit Court of Berkeley County; R. W Memminger, Judge.

Action by F. Q. O'Neill against the Cooper River Corporation the Midland Timber Company, and others. From a judgment for plaintiff, the defendants named appeal. Affirmed.

The exceptions were as follows:

Exceptions.

1. That the court erred in not holding that the respondent F. Q O'Neill, was bound by the provisions of the original timber deed from Lucas to Farr.

2. That the court erred in not holding that the respondent, F. Q O'Neill, by accepting and retaining the extension money paid by the appellant Midland Timber Company, and the appellant Cooper River Corporation, for the years commencing February 27, 1915, and February 27, 1916, estopped himself from claiming that the right to cut the timber given by the deed expired at the end of three years under the terms of the deed as recorded.

3. That the court erred in not finding that the respondent, O'Neill, in accepting and retaining the extension money, paid on the 5th day of February, 1916, and received by the respondent, O'Neill, on or before the 7th day of February, 1916, and not informing the appellants as to his position and claim in the premises, and thus allowing the appellants to remain in ignorance of his claim, while the remaining time which they had under the timber deed as recorded, passed by, estopped himself from claiming that the deed expired in accordance with its terms as recorded, in that, by reason of the said conduct of the respondent, O'Neill, appellants failed to utilize the remaining time which they had under the terms of the said deed as recorded, and in that the respondent, O'Neill, accepted and retained the consideration for the extension of the time for the year ending February 27, 1917.

4. That the court erred in not finding, as a matter of fact, that had respondent O'Neill, informed the appellant Cooper River Corporation at the time he received the renewal money for the year commencing February 27, 1916, that he would not accept such renewal money, and that the rights under the timber deed expired, so far as he was concerned, at the end of the third additional year, the said appellants could have cut and removed before such expiration a great part, if not all, of the timber on the said tract, in that the undisputed testimony shows that a great part, if not all, of the said timber could have been so cut and removed.

5. That the court erred in holding that, although appellants, by reason of the conduct of the respondent, O'Neill, lost the opportunity to utilize the last twenty-one (21) days of the period of three (3) years shown by the deed as recorded, yet the respondent, O'Neill, should not be estopped, in that the appellants were thereby misled into failing to exercise a substantial right, to wit, the cutting and removing of the timber within the remaining period of time; and the court further erred in holding that the appellants would probably not have cut or removed any of the timber, there being no testimony whatever to base this finding upon, but, on the contrary, the undisputed testimony shows that at least a great part of the timber would have been cut and removed within the remaining period of time.

L. D. Lide, of Marion, and Augustine T. Smythe, of Charleston, for appellant Midland Lumber Co.

J. N. Nathans, of Charleston, for appellant Cooper River Corp.

Ficken & Erckmann and James B. Heyward, both of Charleston, guardian ad litem of minors.

GARY C.J.

This is an action for the foreclosure of two mortgages. The facts are thus stated in the record:

"On the 27th day of February, 1903, George Buist Lucas made a deed to Freeman S. Farr, whereby for $800 he conveyed certain timber, which is the subject of this suit, on a tract of land known as 'Benevento' plantation; the deed providing that the said Farr, or his assigns, should have the period of ten years, beginning from the date of the deed, in which to cut and remove the said timber, and in the event it was not cut and removed before the expiration of said period then that he or they should have 'not exceeding ten years additional time therefor, but in the last-mentioned event the said second party, his heirs, executors, administrators or assigns, shall, during the extended period, pay interest on the original purchase price above mentioned, year by year in advance, at the rate of 6 per cent. per annum.' This deed was recorded on the 16th day of March, 1903, in the clerk's office for Berkeley county, but the clerk, in copying the deed, copied it so as to read on the record, 'not exceeding three years' for the extension period, instead of, 'not exceeding ten years,' as provided in the original deed.

Freeman S. Farr subsequently conveyed his rights in this timber deed to Atlantic Coast Lumber Corporation, which, in turn, conveyed to the appellant Midland Timber Company, and it, in turn, conveyed same by deed of general warranty to the appellant Cooper River Corporation, which at the commencement of this litigation claimed to be the owner of the timber and rights under said deed to Farr.

Subsequent to the execution of the timber deed to Farr, Lucas made a mortgage of the 'Benevento' tract without any reservation as to timber to A. B. Murray, dated January 18, 1906, which mortgage Murray subsequently assigned on February 14, 1916, to the respondent, F. Q. O'Neill. Subsequent to the execution of the Murray mortgage, Lucas, on the 1st day of April, 1912, made a mortgage to the said F. Q. O'Neill of said property without any reservations which was duly recorded, so that O'Neill became the owner of the Murray mortgage as a first mortgage and the mortgage executed directly to him as a second mortgage of the premises affected by the timber lease.

Lucas died on the 24th of December, 1914, and, default having occurred on both mortgages, this proceeding was brought to foreclose them, the heirs (three of whom are minors) and administrator of Lucas being made parties defendant, and Cooper River Corporation being joined as claiming an interest in the timber.

The answers of Cooper River Corporation and Midland Timber Company set up that the original deed from Lucas to Farr called for an extension period of ten years after the original period, and that therefore the two mortgages were executed during the extension period and subject to the deed. Further,

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