W.T. Smith Lumber Co. v. Waller

• Decision Date: 17 January 1929
• Docket Number: 3 Div. 861
• Parties: W.T. SMITH LUMBER CO. v. WALLER et al.
• Court: Alabama Supreme Court

119 So. 663

218 Ala. 546

W.T. SMITH LUMBER CO. v. WALLER et al.

3 Div. 861

Supreme Court of Alabama

January 17, 1929

Appeal from Circuit Court, Butler County; A.E. Gamble, Judge.

Bill in equity by the W.T. Smith Lumber Company against Kate C Waller and others for extension of time for cutting and removing timber, and to declare its title to timber under a timber deed. From a decree dismissing the bill, complainant appeals. Affirmed.

Calvin Poole, of Greenville, and Stevens, McCorvey, McLeod, Goode &amp Turner, of Mobile, for appellant.

Powell & Hamilton, of Greenville, for appellees.

ANDERSON C.J.

The appellant bought the standing timber on certain lands described in a deed from J.M. Waller and wife. The deed provides that the timber was to be cut and removed from the land within seven years from January 1, 1920, with the further provision that "the W.T. Smith Lumber Company may extend the time for cutting the above timber by paying thirty cents per acre per year on timbered land to the undersigned."

The timber was not cut and removed with in the seven-year period fixed by the deed; so the question arises: Was there a legal extension, under the terms of the deed, of the right to cut and remove the timber after the expiration of said seven years?

It has been settled by this court, in dealing with clauses similar to the one here involved, that the right to extend must be exercised during the life of the first period; that is before the expiration of the seven years. Murphy v Schuster Springs Lumber Co., 215 Ala. 412, 111 So. 427.

This record affirmatively shows that the option to extend was not legally exercised by the appellant within the seven-year period; but appellant contends that it had an excuse, which should be recognized by a court of equity, against forfeiture. It is suggested that the demand and tender could only be made to the personal representative of the grantor who died in 1925, and no administrator was appointed until after the expiration of the seven years, and that the option to extend was served on the administrator shortly after his appointment.

As to whether the demand and tender should have been upon the personal representative, upon the theory that there was an equitable conversion of the trees into personality, or should have been made on the heirs as holders of the legal title to the land, we need not decide. There was no sufficient demand and tender made on the heirs within the seven years, and who could and should have been ascertained upon the death of the father, the grantor, September 13, 1925, over a year before the expiration of the seven-year period. On the...