Shackelford v. Fitzgerald

Decision Date14 January 1921
Docket Number2003.
Citation105 S.E. 597,151 Ga. 35
PartiesSHACKELFORD ET AL. v. FITZGERALD.
CourtGeorgia Supreme Court

Syllabus by the Court.

The controlling question in this case involves the construction of a timber lease. The instrument recites that the lessor by the instrument in question has leased "all of the timber upon the following described tract of land, for the purpose of boxing, working, and otherwise using for turpentine purposes: All of 42,000 boxes that E. M. Carnes had the lease on, starting at Sedge Grass branch on the east side of Dixie Highway, land containing about 3,300 acres that the said Carnes had boxed and cupped; also place known as the Watson place containing 1,000 acres that said Carnes had cupped and boxed. This said 1,000 acres on the west side of Dixie Highway. All lands known as Shackelford Bros. All lands in the Eighth district, Wilcox county, Georgia." In the tenendum clause are contained the following recitals: That the lessee is to have and to hold, box, work, and use said timber for turpentine purposes, and may commence using the timber or any part thereof at any time that he may desire and continue to work it and every portion thereof for the full term of two years, beginning, with reference to each portion of the timber, from the time that the boxing and working each portion is commenced; that the lease shall continue to operate until all the timber and each and every part thereof had been boxed, worked, and otherwise used for turpentine purposes for the full period of two years. The lease is contained in a printed form, the portions above quoted specifically describing the subject of the lease being written with pen and ink and inserted in the blank form where it was intended that a description of the subject of the lease should be inserted. Held that, while certain parts of the printed lease might be broad enough to convey all timber for turpentine purposes standing upon the lands described, nevertheless, giving to the part that was written with pen and ink its proper weight and consideration, the instrument is effective to convey only the timber containing the 42,000 boxes specified in the part of the instrument written with pen and ink, in the absence of evidence tending to show more fully the intention of the parties and to show that the restrictions in the written part of the lease are not to be so construed independently of the other portions of the lease.

Error from Superior Court, Wilcox County; O. T. Gower, Judge.

Suit by G. O. Shackelford and others against J. O. Fitzgerald. Judgment for defendant, and plaintiffs bring error. Reversed.

G. O Shackelford, Thomas J. Shackelford, and F. C. Shackelford filed their petition against J. O. Fitzgerald, alleging as follows: They owned certain lots of land in Wilcox county had a perfect title to the lands and to the timber growing thereon, and had been in quiet, peaceable, and adverse possession under written title for a number of years. G. O Shackelford on October 15, 1919, executed a lease in the name of Shackelford Bros. to certain timber for turpentine purposes on certain described lands, the timber leased being "all of 42,000 boxes that E. M. Carnes had the lease on starting at Sedge Grass branch on the east side of Dixie Highway, land containing about 3,300 acres that the said Carnes had boxed and cupped; also place known as the Watson place containing about 1,000 acres that said Carnes had cupped and boxed. This said 1,000 acres on the west side of Dixie Highway. All lands known as Shackelford Bros. All lands in the Eighth district, Wilcox county, Georgia." J. O Fitzgerald has entered upon said lands for the purpose of using the timber above described for turpentine purposes, and after entering upon said lands, in disregard of the lease and outside of the lease, he is cupping and boxing all of the timber on said lands, not only the 42,000 old boxes included in the lease, but other timber not boxed by Carnes & Co.; and he is back-boxing the 42,000 trees boxed by Carnes & Co., and cupping and boxing all other timber, and this timber for the most part is very small timber, too small to be cupped and boxed, and the result will be to destroy the life of that timber. Fitzgerald has expressed his intention of working all of the timber for turpentine purposes, and not only the 42,000 old boxes which were leased to him, claiming the right to back-box those 42,000 trees and to work all of the timber for turpentine purposes. The lease to him covered no timber except the 42,000 old boxes, and he has no right under this lease to back-box this timber or to work the other timber for...

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