Stewart v. Herring

• Decision Date: 06 April 1925
• Docket Number: 24827
• Citation: 138 Miss. 719,103 So. 375
• Court: Mississippi Supreme Court
• Parties: STEWART v. HERRING. [*]

103 So. 375

138 Miss. 719

STEWART v. HERRING. ^[*]

No. 24827

Supreme Court of Mississippi

April 6, 1925

Division B

LOGS AND LOGGING. Deed held to except out of estate conveyed life estate in grantor in standing timber with right to cut and remove during life tenency, and reasonable easement therefor.

A deed conveying land contained this provision: "The timber on the above-described land is hereby reserved during Mrs Harriett Stewart's lifetime [the grantor in the deed]. At her death it is to revert to the said Charles H. Whittom [the grantee]." Held: That there was excepted out of the estate conveyed a life estate in the grantor in the standing timber on the land, with the right to cut and remove the same during the period of the life tenancy, and reasonable easement over the land for that purpose; and at the death of the life tenant the remaining standing timber belonged to the owner of the soil.

HON. J Q. LANGSTON, Judge.

APPEAL from circuit court of Marion county, HON. J. Q. LANGSTON Judge.

Two actions by Mrs. Harriett Stewart against J. J. Herring, begun before a justice of the peace, and consolidated on appeal to circuit court. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Rawls & Hathorn, for appellant.

What did "the timber on the above described land" mean on December 1, 1904, the date of the deed? Plaintiff (appellant) relied on the definition of timber given by this court in the case of Great Southern Lumber Company v. Newsom Bros., 129 Miss. 158. And plaintiff's testimony was calculated to conclusively demonstrate that on and prior to December 1, 1904, the date of the deed, the trees out of which the crossties in controversy were manufactured, were timber under the definitions of this court, and had a well-recognized and established use in the vicinity of these lands for the purposes enumerated in the definition, to-wit: "The construction of useful articles, buildings, tools, utensils, fences, etc."

Under the decision of the trial court, it is now necessary in determining whether the peremptory instruction for appellee should have been given or refused, to construe the language of the deed: "The timber on the above described land is hereby reserved during Mrs. Harriett Stewart's lifetime; at her death it is to revert to the said Chas. H. Whittom, containing altogether eighty-two acres more or less."

I.

THE LANGUAGE EMPLOYED CREATES AN EXCEPTION AND NOT A RESERVATION. We take it that appellee will not contend that the grantor, Mrs. Stewart, did not have a right to separate or divide the estates in this property. "Growing trees are subject to separate ownership from the soil on which they stand, and they are a part and parcel of the real estate." Harold v. Miller, 35 Miss. 700; McKenzie v. Shows, 70 Miss. 388; Fox v. Lumber Co., 80 Miss. 1; Butterfield Lumber Co. v. Guy, 92 Miss. 361. And our laws now provide for the separate assessment and valuation of standing timber. Hicks v. Phillips, 146 Ky. 305, 47 L. R. A. (N. S.) 878; Goodwin v. Hubbard, 47 Me. 596; Wait v. Baldwin, 1 Am. St. Rep. 551; Bardon v. O'Brien, 140 Wis. 191, Am. St. Rep. 1066; 8 R. C. L. 1089, Distinction between reservation and exception.

Under this definition and the cases there cited, it is impossible to escape the conclusion that the language employed by the parties to this deed, withdrew some part of the thing granted, which would otherwise have passed to the grantee, and severed from that which is granted, that which is excepted, so that the latter did not pass. In other words, the title to the timber on the land, never passed from Mrs. Stewart, but remained at all times in her. Rich v. Zeilsdorff, 99 Am. Dec. 81; McAllister v. Honea, 71 Miss. 256, definitely announces the rules by which, in the construction of deeds, an exception is distinguished from a reservation. See, too, Maxwell Land Grant Co. v. Dawson, 38 L.Ed. (U. S.) 584.

We submit therefore, that when tested by the authorities cited, the language employed in the deed must be construed as an exception and not as a reservation by the overwhelming weight of authorities in those states which make a distinction between the legal effect of an exception and a reservation.

II.

IT IS NOT MATERIAL WHETHER THE LANGUAGE USED IN THE DEED IS CONSTRUED TO BE AN EXCEPTION OR A RESERVATION. Most of the later case, as we propose to demonstrate, have attempted to disregard the fine-spun distinction between the legal meaning of these two words, and to construe them according to the intention of the parties and the purpose underlying the language used. Note page 878 of Ann. Cas. 1918-A; Bradley v. Va. Railroad, etc., 118 Va. 133; Zimmerman v. Kirchner, 151 La. 483; Plistil v. Kaspar, 168 Ia. 333; Barrett v. Kansas Coal Co., 79 P. 150. See, also, Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264; To the same effect is Preston v. White, 57 W.Va. 278; and Moore v. Griffin,72 Kan. 164; Moore v. Griffin, 4 L. R. A. (N. S.) 477.

THE modern tendency of the court has been to brush aside these find distinctions, and look to the character and effect of the provision itself. Gould v. Howe, 131 Ill. 490, 23 N.E. 602.

III.

THE INTENTION OF THE PARTIES TO THIS INSTRUMENT SHOULD AND WILL CONTROL AND THAT ISSUE SHOULD HAVE BEEN SUBMITTED TO THE JURY FOR ITS DETERMINATION ON THE TESTIMONY SUBMITTED, UNDER PROPER INSTRUCTIONS OF THE COURT. 7 Dec. Dig. 101; 35 Am. Dec. 370; 51 N.E. 186; 86 Ill.App. 193. Under all of the authorities therefore, we respectfully submit that this language in the deed constituted an exception or served to reserve in Mrs. Stewart at all times the title to the timber on this land in 1904, and that, having never parted with this title, she could institute and maintain a replevin suit to recover manufactured products, crossties, made from this identical timber, and in this state of the record, with the intention and acts of the grantor, Mrs. Stewart, clearly shown and proven that it was encumbent upon the court to submit this controversy to the jury for its determination, and the court should have refused to grant the peremptory instruction for the appellee.

IV.

Something was said in the trial court about the peculiar verbiage used in the deed, wherein the timber was reserved or excepted for Mrs. Stewart's lifetime, and at her death to revert to the said Chas. H. Whittom. The remaining clause, that at her death it was to revert to the said Chas. H. Whittom, cannot possibly mean more, under the authorities quoted, than this: "That during her lifetime if she did not see fit to cut and remove this timber or dispose of it, and if there was any timber remaining upon the lands at her death, then the title thereto would pass under the deed to Chas. H. Whittom." Hand v. Filligame, 92 Miss. 189.

R. D. Ford and Mounger & Mounger, for appellee.

THE crossties in question were made from timber that the appellant as a tenant for life was unauthorized to cut, and she could not maintain a suit of replevin as against the remainderman, the appellee. See 17 R. C. L. 619-20. If no other reference to the timber had been made in the deed, these words in themselves would have been sufficient to unmistakably manifest an intention on the part of the parties to vest in Mrs. Harriett Stewart a life estate in this timber with the remainder to the grantee. But the parties did not stop with this language, but with a view of leaving no sort of a doubt as to what their intention was, they proceeded and said that at her death, that is to say, that at the death of the grantor, Mrs. Harriett Stewart, it (the timber on this land) is to revert to the said Chas. H. Whittom.

Now the thing which was reserved during the life-time of Mrs. Harriett Stewart was the timber which stood on this land at the time of this conveyance on December 1, 1904, and this was the very thing which the deed said should revert to Chas. H. Whittom upon Mrs. Harriett Stewart's death. Now the parties to that deed, had they intended to do so, might have reserved the timber coupled with the right to cut and remove it.

As a life tenant as to this timber which stood on this land on the first day of December, 1904, the appellant could have made certain use thereof, and for certain purposes she could have cut this timber, but for no purpose could she have cut this timber that stood on the land in 1904 so as to seriously impair the value of the inheritance. She had made such use of the timber which stood on this land in 1904 as to disable her from making any claim whatever to this timber out of which these ties were made. As the holder of a life estate in the timber which stood on this land in December, 1904, she could have cut a part thereof for the purpose of paying taxes, she could have cut a part thereof for firewood and for making improvements on the place, and she might have felled a part of the timber so as to clear up the land if the clearing had increased the value of the inheritance, but she could not in selling the timber for any of these purposes seriously impair the inheritance. The rule is well stated in the cases of Cannon v. Barry, 59 Miss. 305 and Leonard v. Ogden, 32 So. 278.

THE appellant thus finds herself in the unfavored position of not having ever used any of this timber within the rules of good husbandry or as a life tenant could have used it, but all her sales of the timber were for profit, so that she had not only already impaired the inheritance, but when she cut ninety-five per cent in value of this timber she had practically destroyed the inheritance. After having practically destroyed the inheritance, she then takes the position that she is entitled to maintain a suit of replevin as against the remainderman, the appellee, J. J. Herring and...