Sumter Lumber Co., Inc. v. Skipper

• Decision Date: 12 December 1938
• Docket Number: 33276
• Citation: 184 So. 296,183 Miss. 595
• Court: Mississippi Supreme Court
• Parties: SUMTER LUMBER CO., INC., v. SKIPPER. et al

184 So. 296

183 Miss. 595

SUMTER LUMBER CO., INC., v. SKIPPER. et al

No. 33276

Supreme Court of Mississippi

December 12, 1938

November 7, 1938

(In Banc.)

1 CONTRACTS. Deeds.

The rules for construction of deeds or contracts are designed to ascertain and follow parties' actual or probable intention.

2 CONTRACTS. Deeds.

When language of deed or contract is clear, definite, explicit harmonious in all its provisions, and free from ambiguity throughout, court looks solely to language used in instrument itself and will give effect to each and all its parts as written.

3 CONTRACTS. Deeds.

Where language of deed or contract is not clear, definite explicit, harmonious, and unambiguous throughout and resort must be had to extrinsic aid in construing it, court will look to subject matter thereof, particular situation of parties, and general situation touching subject matter, that is, to all conditions surrounding parties at time of executing instrument and what they may be fairly assumed to have contemplated in respect to such conditions, giving weight also to future developments reasonably to be anticipated or expected by them.

4. CONTRACTS. Deeds.

When parties have proceeded with or under deed or contract for some time, a large and sometimes controlling measure of regard will be given to their practical construction thereof.

5. LOGS AND LOGGING.

The parties to contract for sale and conveyance of timber on 275-acre tract of land to lumber company, with understanding that latter would release land "as quickly as possible" before expiration of ten years, but should have right to yearly extensions at stated price, if timber could not be removed within such time, did not contemplate merely literal or physical possibility of removing timber within ten years, but possibility of doing so in exercise of reasonable care and diligence without loss of value thereof, considering its character, quantity, location, and accessibility and general market conditions affecting lumber industry.

6. LOGS AND LOGGING.

Four annual renewals of time for removal of timber by grantee thereof, as authorized by deed obligating grantee to release land "as quickly as possible" within ten years, merged into last renewal year all questions as to failure to remove it before beginning of such year, so as to present only question whether timber could have been removed during such year in grantee's suit for determination of dispute as to title to timber.

7. LOGS AND LOGGING.

Where one to whom seller of timber on certain land conveyed part of such land after time allowed by sale contract for removal of timber therefrom told buyer at time of last of four annual renewals of time for removal that he desired to farm land and wanted timber removed as soon as possible, buyer was not entitled to assume that time therefor would be renewed beyond expiration of last renewal year, if removal were reasonably possible during such year, though seller and his grantee gave no notice reasonable time before expiration of last renewal that there would be no further renewal.

8. LOGS AND LOGGING.

One to whom grantor of timber on certain land subsequently sold and conveyed portion of land and such purchaser's vendees had no higher or different rights to timber than grantor had before such conveyance, where timber deed was on record.

ANDERSON and MCGOWEN, JJ., dissenting in part.

ETHRIDGE, J., dissenting.

ON SUGGESTION OF ERROR.

(In Banc. Dec. 12, 1938.)

LOGS AND LOGGING. Where general language of timber deed covered all timber owned by grantor in a named county, and deed provided that a particular description in list of timber lands attached as an exhibit should not be construed to limit the general description, the deed operated to convey timber on tracts within the county, but not described in the list.

HON. J. D. GUYTON, Special Chancellor.

APPEAL from the chancery court of Kemper county, HON. J. D. GUYTON, Special Chancellor.

Suit by the Sumter Lumber Company, Incorporated, against J. Q. Skipper and others for determination of a dispute as to title to timber on certain land. Decree for defendants, and plaintiff appeals. Reversed and remanded.

On suggestion of error. Suggestion overruled.

Reversed and remanded.

Clark & Brown, of DeKalb, and Wilbourn, Miller & Wilbourn, of Meridian, for appellant.

The doctrine, that where no time for the removal of timber is stated, the purchaser thereof must remove it within a reasonable time, does not obtain in Mississippi.

Butterfield v. Guy, 92 Miss. 361, 46 So. 78, L.R.A. (N.S.) 1123, 131 Am. St. Rep. 540; Forrest Product & Mfg. Co. v. Buckley, 66 So. 279, 107 Miss. 897.

The deed in the present case does not condition the continuous yearly extensions "upon" or "by" payment of the price. It merely fixes the price at which the continuous yearly extensions granted are to be paid for, and gives the right to designate the due date of the payment to the vendor and requires the vendor to notify the vendee of the due date of the payment.

Time is not of the essence in the present contract. This is apparent from the language of the deed itself, and also from the circumstance that a substantial consideration, to-wit: $ 650.00, was paid originally for the timber, and the price of the yearly extensions was, therefore, simply only $ 25.00 per year in the nature of rent, the parties referring to the rights or privileges of the vendee on the land as if it were a lease.

McRaven v. Chrysler, 53 Miss. 542; Bond v. Brown, 2 F.2d 797; Stacy v. Reams, 221 Ky. 573, 299 S.W. 193.

The failure to remove within ten years waived and did not apply to yearly extensions.

Weaver v. Beasley, 157 So. 282; 6 R. C. L., sec. 383; Crabtree v. Hagenbaugh, 25 Ill. 233, 79 Am. Dec. 324; Gould v. Banks, 8 Wend. (N.Y.) 562, 24 Am. Dec. 90; Garnhart v. Finney, 40 Mo. 449, 93 Am. Dec. 303; Falls v. Carpenter, 21 N.C. 237, 28 Am. Dec. 592; McAuliffe v. Vaughan, 135 Ga. 852, 70 S.E. 322, Ann. Cas. 1912A 290, 33 L.R.A. (N.S.) 255; Krause v. Bd. of School Trustees, Crothersville, 162 Ind. 278, 70 N.E. 264, 102 Am. St. Rep. 203, I Ann. Cas. 460, 65 L.R.A. 111.

Appellant acquired all the rights of Sumter Lumber Company under deed of October 16, 1922.

Gaskins v. Green, 141 Ga. 552, 81 S.E. 882; Midland Timber Co. v. J. F. Prettyman & Sons, 97 S.C. 247, 81 S.E. 484.

Provision for continuous yearly extension is not invalid.

Nichols v. Day, 91 So. 451, 128 Miss. 756; Davis Bros. Lbr. Co. v. Smitherman, 100. So. 785; Stacy v. Reams, 221 Ky. 573, 299 S.W. 193.

S. Q. Skipper, son and grantee of J. Q. Skipper, cannot defeat extension.

Wheat v. White Lbr. Co., 150 Miss. 615, 116 So. 103; Finkbine Lbr. Co. v. Saucier, 150 Miss. 446, 116 So. 736; Smith v. Salmon Brick & Lbr. Co., 151 Miss. 329, 118 So. 179; Weaver v. Beasley, 157 So. 282.

Any objection that tender of price of yearly extension for period from October 16, 1936, to October 16, 1937, was not made in time was waived.

Murphy v. Schuster Springs Lbr. Co., 215 Ala. 412, 111 So. 427; Kingkade v. Plummer, 239 P. 628; 38 Cyc. 150; Jeffreys-McElrath Mfg. Co. v. Faulk, 183 S.E. 108; Sun Lbr. Co. v. Nelson Fuel Co., 106 S.E. 41; Bangert v. Rouer Lbr. Co., 86 S.E. 516; Gotham v. Wachsmuth, 146 N.W. 505.

Spinks & McCully, of DeKalb, for appellees.

It is the duty of a court, in construing a contract, to place itself in the situation of the parties at the time the contract was made, and to ascertain their intention from the contract, in the light of that situation, looking, also, to the subject matter of the contract.

Wadell v. DeJet, 76 Miss. 104, 23 So. 437.

Of course, when the minds of the parties met in the sale of the timber it was not suggested that the time of its removal depended upon the plans of the company in its large scale operations. But now, fourteen years after this trade was made, with the grantor in his dotage, his mind gone, it would be contended that it was meant by providing for extensions under any circumstances, that such provisions gave the grantee the right in perpetuity to remove the timber. Any such construction of the language "in event the timber cannot be removed within the ten year period" would do violence to common acceptance of the meaning of words. And further than this any such construction would do violence to the expressed purpose and intent of the parties at the time the contract was entered into. You can't conceive of a sane man burdening his lands to grow timber for another in any such manner. It is contrary to our common every day experience.

Since October 16, 1922, J. Q. Skipper sold a part of the land in question to S. Q. Skipper, and the other to Spring Hill Consolidated School, and in neither deed was any mention made of the timber having been sold, and no reservation made of the possible reversionary rights to the timber. Therefore, under the general rule, and under the rule in this state, the timber, when the time for removal expired, went to vendees of the fee.

Brown v. Minden Lbr. Co., 86. So. 727; Wheat v. J. J. White Lbr. Co., 116 So. 103.

Our own court has consistently held that when the time for removal of the timber as fixed in the deed has expired the vendee has no further right in the timber or the land on which it is located.

Rowan v. Carlton, 56 So. 329; Hunter v. Bridges, 100 So. 371; Crowrow Hardwood Co. v. Bruks, 115 So. 585; Ingram Day Lbr. Co. case, 100 So. 369.

On the point that the right to an extension depended upon the impossibility of removal during the original term, or granted extensions, we find a number of cases exactly or closely in point.

Murphy v. Schuster Springs Lbr. Co., 111 So. 427; Hammond v Hilgner, 100 So. 407; Weaver Bros. Lbr. Co. v. Beasley, 157 So. 282; ...