Reynolds v. Wingate

• Decision Date: 18 June 1927
• Docket Number: 5678.
• Citation: 138 S.E. 666,164 Ga. 317
• Parties: REYNOLDS v. WINGATE.
• Court: Georgia Supreme Court

138 S.E. 666

164 Ga. 317

REYNOLDS v. WINGATE.

No. 5678.

Supreme Court of Georgia

June 18, 1927

Syllabus by the Court.

A grant of "all of the timber of every kind and description standing, growing, and being upon" certain described tracts of land conveys only the live timber on said lands and does not convey dead timber on said lands, nor dead trees which had fallen and were lying on said lands at the date of said grant.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, All.]

Where in such conveyance the grantors reserved the right to use such part of said bargained timber as might be required to make certain repairs upon the plantation on which the timber stood, and also reserved a tract of timber containing approximately 60 acres, and where one of said grantors having become the sole owner of said lands, afterwards conveyed to the grantee in the first conveyance all the timber reserved in the first conveyance, except "all pine timber" on 3 acres of said lands, and "all hardwood" on a certain described tract, and where in the second conveyance the grantor modified the reservation of timber for plantation purposes specified in the first conveyance, so as to make it applicable only to the dead timber on a certain part of the plantation, the grantee under the two conveyances acquired, after the execution of the second conveyance, all the timber standing on all the lands except the pine timber on the 3-acre tract, the hardwood on the strip of land between the road south of Wingate's dwelling and the field south of said road, and so much of the dead standing timber as might be needed for the plantation, purposes specified, but under said conveyances did not acquire title to dead trees which had fallen prior to the execution of the contract of April 5, 1923.

In the construction of deeds and other instruments the word "and" is sometimes used to mean "or," and vice versa, in order to effectuate the intention of the parties to such instruments, but these words are in no sense interchageable terms, but, on the contrary, they are used for purposes entirely dissimilar, and the substitution of one of these words for the other should never be resorted to except for strong reasons and when the context favors such substitution.Under this rule the word "or" should not be substituted for "and" in the grant in the lease of April 5, 1923, of "all the timber *** standing, growing, and being upon" described lands.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, And; Or.]

Error from Superior Court, Baker County; W. V. Custer, Judge.

Petition for injunction by J. W. Reynolds against M. B. Wingate.To review a judgment granting the injunction in part, plaintiff brings error.Affirmed.

Milner & Farkas, of Albany, for plaintiff in error.

Benton Odom, of Newton, and Pottle & Hofmayer, of Albany, for defendant in error.

HINES J.

On April 5, 1923, R. L. Hall and M. B. Wingate by their lease sold and conveyed to the Blakely Hardwood Lumber Company"all of the timber of every kind and description standing, growing, and being upon" certain described tracts of land.The grantors covenanted and agreed that during the life of the lease they would "not convey in any manner to any other person, corporation, or partnership a right of way of any character whatever to be used by such person, corporation, or partnership for the purpose of hauling over said *** described premises any timber of any kind, or the manufactured products thereof."The lease further provided that the grantors "shall have the right to use of said bargained timber such part thereof as may be required for making shingles necessary to repair the roofs of houses now upon said plantation, or necessary fence posts upon said plantation, and otherwise necessary to keep said buildings in repair, but shall not have the right to saw any of said timber into lumber for any purpose."The grantors reserved "a tract of timber, containing approximately 60 acres, adjacent to the residence occupied by the said M. B. Wingate."The Blakely Hardwood Lumber Company transferred this lease to J. W. Reynolds.Thereafter Wingate acquired the title of Hall to the lands embraced in said lease.On December 17, 1925, Wingate executed to Reynolds another conveyance.This instrument recited the lease from Hall and Wingate to the Blakely Hardwood Lumber Company, of April 5, 1923, and the transfer thereof to Reynolds, and referred thereto for its contents.This instrument further recited that Wingate had become the sole owner of the Newell place, the timber on which was conveyed by the above lease of April 5, 1923, and that under the terms of said lease Wingate had reserved to himself a tract of timber of approximately 60 acres, adjacent to his residence, and had also reserved certain timber for plantation purposes, and that Reynolds desired to purchase said reserved timber, with certain exceptions which will be hereinafter stated.By said instrument, after said recitals, Wingate, in consideration of $3,000, sold and conveyed unto Reynolds "all timber as reserved in said contract dated April 5, 1923," except "all pine timber" on 3 acres in front of the house of Wingate, and more fully described in said instrument, and "also all hardwood on a certain strip of land between the road south of the house occupied" by Wingate "and the field south of said road."This instrument further provides that:

"Also, the reservation as to timber for plantation purposes is modified so as to be applicable only to the dead timber on that part of the place owned by" Wingate.

Reynolds filed his petition against Wingate, in which he alleged that the latter was cutting, sawing, and removing from said land logs and timber, and in which he prayed for an injunction restraining Wingate from so doing.The trial judge enjoined Wingate from cutting any of the standing timber upon the lands described in said lease of April 5, 1923, except for use for plantation purposes, as provided in said lease contract, and denied an injunction restraining Wingate from cutting dead logs which had fallen and were lying on the ground when said lease contract of April 5, 1923, was executed.To this judgment Reynolds excepted upon the ground that the judge erred in holding that the dead timber which had fallen prior to April 5, 1923, was not included in the conveyances hereinbefore referred to, whereas said conveyances were clear and unambiguous and conveyed all of the timber, whether standing or fallen.

1.The lease of April 5, 1923, is of "all of the timber of every kind and description, standing, growing, and being upon" the tracts of lands described in said lease.Does this instrument convey trees which were dead and which were standing on the land, and trees which were dead and had fallen and were lying upon the ground at the date of this lease?In Dickinson v. Jones,36 Ga. 97, 104, it was said:

"Timber is used technically to denote green wood of the age of 20 years or more, such as oak, ash, elm, beech, maple, and with us would include walnut, hickory, poplar, cypress, pine, gum and other forest trees."

In Handcock v. Massee & Felton Lumber Co.,127 Ga. 698, 56 S.E. 1021, the grant was of "'all and singular timber suitable for sawmill purposes growing on' *** described lot of land."In that casethe plaintiff contended that this description included only the green timber, basing his contention upon the technical definition of the word "timber" and the use of the word "growing."The defendant contended that the language, "all and singular timber suitable for sawmill purposes growing" on the described land, was more comprehensive in meaning, and included all timber suitable for sawmill purposes at the time of the execution of the lease, whether green or dead, and that the word "growing" was identical in meaning with the word "being."This court, speaking through Justice Beck, said:

"While there is some confusion in the definition of the word 'timber,'we think that, limited as it is by the

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