Smith v. Salmen Brick & Lumber Co.
| Decision Date | 28 May 1928 |
| Docket Number | 27106 |
| Parties | SMITH et al. v. SALMEN BRICK & LUMBER CO. et al. [*] |
| Court | Mississippi Supreme Court |
On Suggestion of Error Overruled, Oct. 1, 1928.
APPEAL from chancery court of Pearl River county, HON. T. P. DALE Chancellor.
Suit by Mrs. J. A. H. Smith and others against the Salmen Brick & Lumber Company and others. From a decree dismissing the bill complainants appeal. Reversed and remanded.
Reversed and remanded. Overruled on suggestion of error.
Rawls & Hathorn, for appellants.
It is our contention that there are but two questions to be determined and upon the determination of these two questions the decree appealed from must either stand or fall.
First, is the clause in the deed from James A. Wheat and wife to their five sons, an exception or reservation? and second, if an exception, what pine timber is excepted from the terms of the deed? The clause which the chancellor, by his finding held to be only a reservation, and which we respectfully contend is an exception, and the clause to which we refer in our two propositions or questions above, reads as follows:
"Excepting and reserving from the above-described land all of the pine timber on said land heretofore sold to the New Orleans Naval Stores Company, subject to the conditions of a certain timber deed made by the grantors herein to the said New Orleans Naval Stores Company on the 28th day of November, 1905."
We respectfully submit that the above-quoted clause in the deed from James A. Wheat and wife to his five sons, J. H. Wheat, E. M. Wheat, B. F. Wheat, M. W. Wheat, and J. S. Wheat, is clearly an exception and not a reservation, and if it is an exception, and if its legal effect in the deed is to except the pine timber on the land from the operation of the deed, then the five sons never had any claim or right to the pine timber, and at the expiration of the twenty-year limitation in the timber deed from James A. Wheat and wife, to New Orleans Naval Stores Company, the pine timber would revert to James A. Wheat, if living and if dead to his heirs at law. While the terms "excepting" and "reserving" are frequently used indifferently, and synonymously, and the one is often used for the other, yet they have an entirely different meaning. One of the clearest distinctions we have found in the meaning of "excepting" and "reserving" when so used is in Rick v. Zeilsdorf, 99 Am. Dec. 83.
In the above-cited case the court held that the term in a deed "reserving the right to cut and remove all the pine timber or trees upon said premises, and one-half of all cedar trees upon said premises," was an exception and not a reservation, and that title to the reserved timber remained absolutely in the grantor. See Wait v. Baldwin (Mich.), 1 Am. St. Rep. 551; Bordon v. O'Brien (Wis.), 133 Am. St. Rep. 1066; Hicks v. Phillips, 47 L. R. A. (N. S.), 878; Levis & Co. v. Parrott Lbr. Co., 46 S.E. 647; Hickman et al. v. Enterprise Lumber Co. et al., 105 So. 340; Woods v. Union Sawmill Co., 142 La. 554, 77 So. 280. The supreme court of Mississippi, in the recent case of Stewart v. Herring, 138 Miss. 728, 103 So. 375, held that the provision in a deed "the timber on the above-described land is hereby reserved during Mrs. Harriett Stewart's lifetime," was an exception and not a reservation, and that title to the timber was absolute in Mrs. Stewart during her lifetime.
There are two major constructions given to timber deeds with a time limitation within which to cut and remove the timber. The rule in a great number of states, including Alabama, Maine, New Hampshire and Indiana, is that an indefeasible title passes to the timber, and that this title is absolute and is not lost or destroyed by a clause in the deed limiting the time within which the timber can be cut and removed. See Zimmerman Mfg. Co. v. Doffin (Ala.), 42 So. 858, for a full discussion of the above construction.
The second major construction given timber deeds with the limitation clause in them, and the construction given by Mississippi, as we will show and a great number of other states in the Union, is that a defeasible title only passes, subject to be defeated by failure to cut and remove within the time limitation. See note U. S. Coal Co. v. Harrison, 47 L. R. A. 875. While a great number of states holding to this second construction, and the final result of this holding in all these states is that title to the timber is forfeited and vests in the grantor at the expiration of the time limit. We find here two constructions which are major, so far as this class of cases is concerned, given, or two different reasons assigned by the court, by which constructions or reasons they arrive at the final conclusion, that title is not absolute but is defeated by failure to cut and remove in the time limit. One view or construction is that the limitation clause is a condition precedent and that therefore, title passes only to those trees not cut and removed, title never passes, but remains in the grantor, and of course would pass by later conveyance of the fee in the land unless duly excepted. To this construction belongs quite a number of states, including Louisiana and Georgia. The second construction, and the one to which Mississippi has tied herself, is that the clause is a condition subsequent, and that absolute title passes, subject to defeasance as to any and all timber not cut and removed within the time limit.
Our court has clearly and definitely aligned itself with those states which hold that "a contract for standing timber, which provides that it shall be removed within a specified time, passes an absolute title to the timber, which is subject to defeasance as to the timber not removed within the time limit." To this effect is the holding of this court, speaking through Chief Justice SMITH in Ladner v. Ingram-Day Lbr. Co., 135 Miss. 641. The position of our court is further clarified by the recent holding, again speaking through Chief Justice SMITH, in the case of Crorow Hardwood Co. v. Mrs. E. J. Burks, No. 26,917, and which was decided just a few weeks ago and is not yet reported.
Having demonstrated as we think we have, that under the rule of construction in Mississippi, absolute title to the timber in question passed to the New Orleans Naval Stores Company, subject only to be defeated by failure to cut and remove, we assert that the thing sold to the Naval Stores Company was "all the pine timber" on the land. If "all the pine timber on the land" was sold to the New Orleans Naval Stores Company, then when James A. Wheat conveyed to his five sons, "all the pine timber" was excepted and not conveyed for he excepted, and did not convey "the pine timber that had been theretofore sold to New Orleans Naval Stores Company." Under the holding of our court in the Crorow Lumber Company case, supra, at the time James A. Wheat made his deed to his five sons, he did not own the pine timber, and the New Orleans Naval Stores Company did own it.
This is not a case involving the intention of the parties. When the court can determine the legal meaning of the exception in the deed from Wheat to his five sons, it will apply this meaning, and in doing so it will of course, give effect to all the words used if it can be done. The exception in full reads: "Excepting and reserving from the above-described land all of the pine timber on said land heretofore sold to the New Orleans Naval Stores Company, subject to the condition of a certain timber deed made by the grantors herein to said New Orleans Naval Stores Company on the 28th day of November, 1905." If the exception had read "excepting and reserving all pine timber on the land," and stopped there, we take it that no one could or would contend that the reversion would go with the land, but all would admit that the timber so excepted would revert to James A. Wheat or his heirs.
The exception actually reads, "excepting and reserving from the above-described land all the pine timber on said land heretofore sold to the New Orleans Naval Stores Company." If Mississippi had aligned herself with those states which hold that removal in a deed to timber with a time limit constituted a condition precedent, and that little only passed to the timber as and when it was cut and removed, then appellees would have to prevail here, for clearly no timber would be sold, except such as title should pass to, and title would pass to none except such timber as was actually cut and removed. See St. Louis Cypress Co. v. Thibodeaux (La.), 45 So. 745.
It was not the timber that was "subject to the conditions of a certain timber deed made by the grantors herein to the said New Orleans Naval Stores Company," but it was the land itself which was subject to these terms and conditions. See Rodgers v. Lumber Mineral Co., 115 Miss. 339.
We are not arguing the proposition that the pine timber would revert to the heirs at law of James A. Wheat, if it was excepted from his deed to his five sons, as the courts are fully agreed on this, and we take it appellees will not take issue on that proposition. We want to call the court's attention to the fact that when appellant J. S. Wheat conveyed his one-fifth interest in the lands in controversy he specifically reserved and excepted from this deed the same exceptions and reservations as were in the deed from his father to the five sons, including himself. Conveying no more and no less than was conveyed to him by his father, and therefore, if the pine timber reverted to the estate of James A. Wheat, appellant, J. S. Wheat owns his one-eleventh interest in the timber just as his sisters, the other appellants do.
R. D. Ford and J. C. Shivers, for appellee.
The appellants rely for a reversal of this case upon the...
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