Spencer v. Strange, 43892

• Decision Date: 04 April 1966
• Docket Number: No. 43892,43892
• Citation: 184 So.2d 878
• Parties: R. C. SPENCER v. Dr. W. W. STRANGE et al.
• Court: Mississippi Supreme Court

Page 878

184 So.2d 878

R. C. SPENCER v. Dr. W. W. STRANGE et al.

No. 43892.

Supreme Court of Mississippi April 4, 1966.

Scribner & Brewer, Tupelo, for appellant.

Lumpkin, Holland & Ray, Tupelo, E. K. Windham, Booneville, for appellees.

BRADY, Justice:

On February 4, 1963, Dr. W. W. Strange sold to the appellant, R. C. Spencer, a standing tract of approximately 125,000 feet of timber situated on a certain tract of land for $1,000. Dr. Strange prepared and delivered to appellant a form warranty deed wherein the word 'warrant' had been marked out and the word 'timber' substituted therefor, and it contained the following language:

(1) '(T)hat the said party of the first part shall forever warrant and defend the title to the said premises unto the party of the second part, his heirs and assigns, against the claim of all persons lawfully claiming the same, or any part thereof * * *.'

(2) 'Grantee shall have twelve months to cut and remove the timber * * *.'

Appellant did not record the timber deed and thereafter appellant, Spencer, entered upon the lands and cut approximately 75,000 feet of timber but, because of bad weather conditions, in April he discontinued cutting.

On or about July 25, 1963, Dr. Strange conveyed the lands described in the timber deed to appellee, Bill Enis. There was no reservation of the timber already sold to the appellant; however, Dr. Strange notified Enis personally that Spencer had a timber deed and that about 50,000 feet of timber remained to be cut by Spencer. On September 6, 1963, Enis conveyed the same lands by warranty deed to appellees, Norman Fulper, Jr., et ux., Eileen T. Fulper, without reserving or excepting the timber rights.

In November 1963, within the twelve months allowed for the removal of the timber, appellant attempted to go upon the lands to cut the remaining standing timber, but Spencer was barred from coming on the land by Fulper. Prior to the expiration of the twelve month period covered in the deed, appellant, Spencer, brings this action against Dr. Strange, Bill Enis and Norman Fulper and his wife, Eileen T. Fulper, asking for right to enter the land and to cut the remainder of the timber or, in the alternative, for a money judgment for the total fair market value of standing timber remaining, estimated to be twenty dollars per thousand for the 50,000 feet still standing.

The Chancery Court of Prentiss County entered its order denying any relief to Spencer, either to cut the timber or to a money judgment. From this judgment, Spencer perfects this appeal.

Numerous assignments of error are urged, but these...