Wheat v. J. J. White Lumber Co.

• Decision Date: 19 March 1928
• Docket Number: 26998
• Citation: 116 So. 103,150 Miss. 615
• Court: Mississippi Supreme Court
• Parties: WHEAT et al. v. J. J. WHITE LUMBER CO. [*]

116 So. 103

150 Miss. 615

WHEAT et al. v. J. J. WHITE LUMBER CO. ^[*]

No. 26998

Supreme Court of Mississippi

March 19, 1928

Division B

CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF MISSISSIPPI AT THE MARCH TERM, 1928. (Division B.)

LOGS AND LOGGING. Warranty deed of "land" held to convey grantor's contingent reversionary interest in standing timber previously conveyed.

Warranty deed of "land," without any reference to reversion of timber, conveys grantor's contingent reversionary interest in standing timber on the land which he had previously conveyed to another with limitation that it be removed within a specified time.

HON. T P. DALE, Chancellor.

APPEAL from chancery court of Pearl River county, HON. T. P. DALE Chancellor.

Suit by J. S. Wheat and others against the J. J. White Lumber Company. From an adverse decree, plaintiffs appeal. Affirmed.

Affirmed.

Mayson & Kelly, for appellants.

The vital question in this case is to whom the title to the hardwood timber in question reverted at the expiration of the time limit, it not having been removed within the prescribed period whether to the original grantor or the vendee owning the soil at the expiration of the limit for removing the timber.

Appellants' vendees could acquire under their conveyance no title to timber outstanding in another because appellants had none whatever to convey but were the exclusive owners of the reversionary interest in the event that the immediate vendees of the timber and their successors in title if any did not cut and remove the same within the time specified. There is some diversity of opinion among the authorities as to whether the reversion would go to the original grantor or a subsequent grantee of the land. The majority rule supports the contention that it goes to the original owner of the land. See note to Zirkle v. Allison, 15 A. L. R. 108 et seq.

So far as we have been able to find the question as to whom the timber would revert in this state, whether to the original grantor or subsequent grantee of his, is res nova, but since in the instant case when the soil was conveyed to appellants' immediate grantee none of the timber in controversy was conveyed to them. The ancient maxim that no one could convey any greater estate than he had would be applicable in this case. We have shown that a timber deed must be in writing, so then in order for appellants' immediate grantees to get a title to the timber, it would be necessary for them to get a conveyance from the grantors of the soil if living, or their heirs at law, if they be dead. In other words, during the twenty years' limitation appellants couldn't give any title to the timber nor could the grantees receive any title thereto, and, as suggested, the only persons to whom title to the timber could revert would be the original grantors.

R. D. Ford and J. C. Shivers, for appellees.

The question at issue in this case is whether or not the appellants in their separate conveyances of their interest in this land conveyed away to their grantees the right of reversion to this timber, or whether or not by the making of these deeds they have disabled themselves by covenants of warranty contained therein, to claim the right of reversion.

In equity, conveyance of reversions and interests to vest in the future are valid. The rule in regard to this is well stated in 8 R. C. L. 1062, 1063, and they actually state that while at common law a mere possibility of reverter may not be conveyed, yet the rule in equity is different. McClure v. Raben, 125 Ind. 139, 25 N.E. 179, 9 L. R. A. 477 and note; McAdams v. Bailey, 169 Ind. 518, 82 N.E. 1057, 124 A. S. R. 240, 13 L. R. A. (N. S.) 1003; Truell v Eastman, 3 Metc. (Mass.), 121, 37 Am. Dec. 126 and note; Bayler v. Com., 40 Pa. St. 37, 80 Am. Dec. 551; Mudge v. Hammill, 21 R. I. 283, 43 A. 544, 79 A. S. R. 802. Note: Ann. Cas. 1913C, 367.

The law recognizes the fact that a deed containing the general covenants of warranty makes ample provision that such a vendor may not assert a subsequently acquired title. Wrightman v. Doe, 24 Miss. 675; Garner v. Garner, 117, Miss. 694, 78 So. 623; Brown v. Minden Lumber Co., 148 La. 175, 86 So. 727; International Lbr. Co. v. Staude, 175 N.W. 909; Deer Creek Lbr. Co. v. Sheets (W. Va.), 83 S.E. 81; Hornthall v. Howcott (N. C.), 70 S.E. 171; Sutton v. Gray Lbr. Co. (Ga.), 60 S.E. 2; Note to Zirkle v. Allison, 15 A. L. R. 106 et seq. There is no majority rule or no minority rule on this subject. A careful reading of all of these cases will disclose that there is no apparent conflict in authority. All of these cases recognize the fact that a reversionary interest is alienable.

OPINION

ANDERSON, J.

Appellants filed the bill in this case in the chancery court of Pearl River county against appellee. Appellee demurred to the bill, which demurrer the court sustained. Appellants declining to plead further, a final decree was rendered dismissing their bill. From that decree appellants prosecute this appeal.

We deem an abstract rather than a concrete statement of the case sufficient.

Where the owner of land conveys the standing timber thereon to one person with the limitation that the timber shall be removed within a certain named period, and conveys the land by warranty deed to another person without any reference in the deed as to the reversion of the timber in case it is not removed within the period limited for its removal, and the timber is not removed within such period, question, To whom does the timber revert, the original grantor of the land and the timber, or to his grantee of the land by warranty deed? We hold that the timber goes to the latter, for the following reasons: It is settled by a long line of decisions of this court that the term "land" embraces not only the soil, but the standing timber thereon, some of which cases are Harrell v. Miller, 35 Miss. 700, 72 Am. Dec. 154; Walton v. Lowrey, 74 Miss. 484, 21 So. 243; Fox v. Pearl River Lbr. Co., 80 Miss. 1, 31 So. 583; Wilson v. Lumber Co., 114 Miss. 190, 74 So. 825; Hall v. Lbr. Co., 89 Miss. 588, 43 So. 2, 119 Am St. Rep. 709.

Therefore where the grantor of land owns the entire estate in the land, including the standing timber thereon, and conveys the land without any reservation of the standing timber, the grantee gets both the land and the standing timber. In other words, the standing timber goes with the land, if it is not reserved in the conveyance.

But the question here is, if the grantor of the land has, at the time of his conveyance of the land, only a reversionary interest in the standing timber thereon, whether such reversionary interest in the standing timber, without being reserved to the grantor in the deed, goes to his grantee.

Words of inheritance in a will or a conveyance are...