Williams v. Batson

• Citation: 187 So. 236,186 Miss. 248
• Decision Date: 20 March 1939
• Docket Number: 33446
• Court: United States State Supreme Court of Mississippi
• Parties: WILLIAMS v. BATSON

187 So. 236

186 Miss. 248

WILLIAMS v. BATSON

No. 33446

Supreme Court of Mississippi

March 20, 1939

Suggestion Of Error Overruled May 29, 1939.

APPEAL from the chancery court of Pearl River County HON. GEORGE W CURRIE, Special Chancellor.

Suit in equity by R. Batson against G. H. Williams to cancel defendant's claim to timber and to quiet plaintiff's title thereto. Decree for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Hathorn & Williams, of Poplarville, for appellant.

The deeds requiring cutting to commence within ten years, and failure to commence cutting within said time extinguished all rights of appellee under the deeds.

The effect to be given a timber deed depends upon the intention of the parties. Where the deed itself clearly shows the intention of the parties, effect will be given to such intention by the court. In order to ascertain the intention of the parties, the whole instrument must be considered in determining the meaning of its separate parts, so that, if practicable, harmony and congruity may be attained.

Hall v. Eastman, Gardiner & Co., 89 Miss. 588, 43 So. 2; Goosey v. Goosey, 48 Miss. 210; G. & S I. R. R. Co. v. Patten, 180 Miss. 756, 178 So. 468; Continental Cas. Co. v. Pierce, 170 Miss. 67, 154 So. 281; Kerl v. Smith, 96 Miss. 827, 51 So. 3; Vinegar Bend Lbr. Co. v. Churchwell, 123 Miss. 807, 96 So. 299.

The phrase "during the life of this instrument" denotes duration with limitation as to time.

19 C. J. 832.

This construction contended for by appellant does not require any of the provisions of the deeds to be rejected or stricken out, but gives meaning to all the provisions and makes them all harmonize with the general purpose of the parties as derived from the whole of the deeds. On the other hand, to accept the construction contended for by counsel for appellee, not only would the ten year provision have to be stricken out, but the court would have to hold that this ten year provision means nothing and was not placed in the deeds to express the intention of the parties and fix a time with reference to when the timber should be cut and removed. Not only would the court have to strike out this ten year provision, which, unquestionably, was inserted in the deeds to express the intention of the parties that the timber should be removed within a limited time, but the court would have to go further and write a deed for the parties conveying the timber to the grantee in fee and in perpetuity.

After careful investigation of the authorities, we have been unable to find a timber deed that reads like the deeds in the case at bar. We have found a number of cases providing for extensions of the time within which to cut and remove timber. Those cases do not involve the question of commencing to cut within the time limited in the deeds as a condition precedent to the right to enjoy the extension; but they do involve the proposition as to whether or not it is necessary to tender and offer to pay the consideration for the extension within the original time limit in the deeds. There are cases that decide this question both ways. The majority of the cases, however, hold that it is necessary to make such tender of payment for the extension before the expiration of the time granted in the deed, and we think this the better rule. Because of the analogy of these cases to the case at bar, we cite some of the cases which hold that such tender of payment is necessary to be made before the expiration of the time limited in the deed.

Hartley v. Neaves, 84 S.E. 97; Rountree v. Cohn-Bock Co., 73 S.E. 796; Granville Lbr. Co. v. Atkinson, 234 F. 424; Murphy v. Schuster Springs Lbr. Co., 111 So. 427; W. T. Smith Lbr. Co. v. Waller, 119 So. 663; Allison v. Forehand, 121 So. 532; Bateman v. Lbr. Co., 77 S.E. 747.

A timber deed will never be construed as a grant in perpetuity unless it is clearly shown that such was the intention of the parties; and where the deed does not clearly show that it was intended to operate as a grant in perpetuity, the court will fix a reasonable time in which to cut and remove the timber conveyed.

Butterfield Lbr. Co. v. Guy, 92 Miss. 361, 46 So. 78; 38 C. J. 168, par. 47; Hall v. Eastman, Gardiner & Co., 89 Miss. 588, 43 So. 2; McNair & Wade Land Co. v. Adams, 45 So. 492; Cummer Co. v. Yager, 79 So. 272; McRae v. Stillwell, 55 L.R.A. 513; Johnston v. Powhatan Min. Co., 103 S.E. 84; Thomas v. Gates, 31 F.2d 828; Young v. Camp Mfg. Co., 66 S.E. 843; Carpenter v. Camp Mfg. Co., 71 S.E. 559; Brown v. Surry Lbr. Co., 75 S.E. 84; Atlantic Coast Lbr. Corp. v. Litchfield, 73 S.E. 182; Henderson v. Lyons, 209 P. 1095; Wright v. Camp Mfg. Co., 110 Va. 678, 66 S.E. 843.

Appellee's contention that the deeds show the parties intended the grant of the timber to be in fee and in perpetuity is erroneous, and is not supported by the authorities.

We respectfully submit that this court should reverse the decree of the trial court and render a judgment here for appellant, holding that all of appellee's rights under the deeds are now extinguished either (1) by reason of his failure to commence cutting the timber within ten years from the dates of the deeds, or (2) by reason of his failure to cut and remove the timber within said ten years and the time that has elapsed since the expiration of said ten years; and, if appellant is not entitled to such judgment on the record, this court should reverse and remand the case with directions to the trial court to hear the case on the pleadings and evidence and determine whether or not a reasonable time within which to cut and remove the timber has expired since the expiration of the ten years, and, if such reasonable time has not expired, to fix a reasonable time within which appellee may enter the lands and cut and remove the timber.

H. H. Parker and J. M. Morse, both of Poplarville, for appellee.

A casual reference to the contract made exhibit to the bill of complaint, and to the deeds made exhibits to the bill of complaint, will demonstrate unto the court beyond question that these two contracting parties wrote as they traded in connection with this timber sale; that they went into the most minute details, as to every conceivable question to avoid litigation, or attack in connection with the timber purchased by one, and the timber rights and privileges sold by the other. It is apparent from the wording of the instruments that the seller had in mind a ten year period; that he had timber which he desired to sell, which he was selling at full consideration, in fact, he got its value in the initial payment of $ 37, 572.00, $ 6 per thousand feet, for hardwood timber, over $ 41 per acre; that the purchaser had the money, desired to buy but did not desire to purchase on a ten-year limit, and as they wrote they traded. When the purchaser would not purchase on the ten year limit, and the seller did not want to tie up his land indefinitely without additional compensation, the contract and the deeds following, were enlarged upon so as to give unto the purchaser, if he would pay the taxes on the vendor's land, unlimited time. This is so apparent that it cannot be questioned.

Wilson v. Vincinnes, 114 Miss. 190, 74 So. 825; J. M. Jones Lbr. Co. v. Homochitto Development Co., 163 Miss. 305, 141 So. 589.

This court will not write a new contract for these parties, it has repeatedly so held.

Goff v. Jacobs, 164 Miss. 817, 145 So. 728; Piere v. Sevier, 145 So. 97; Southern R. Co. v. Franklin, etc., R. Co., 96 Va. 693, 32 S.E. 485, 44 L.R.A. 297; 13 C. J. 558; 6 R. C. L. 857; Kendricks v. Robinson, 145 Miss. 585, 111 So. 99; Edrington v. Stephens, 148 Miss. 583, 114 So. 387; Plantations Co. v. Heading Co., 104 Miss. 131, 61 So. 166.

The law as announced by this court in the case of Butterfield Lbr. Co. v. Guy, 92 Miss. 361, 46 So. 78, is controlling in favor of the appellee on the timber conveyance in question in this suit.

The case of Nichols v. Day, 128 Miss. 756, 91 So. 451, set at rest for all time the question of a deed, like the one at bar, being violative of the rule of perpetuity and held that it violated no such rule.

The case of Butterfield Lbr. Co. v. Guy, 92 Miss. 361, 46 So. 78, was approved by this court not only in the Nichols v. Day case, and the Forest Products & Mfg. Co. case, 107 Miss. 897, 66 So. 279, but in the cases of L. N. Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1; Gates Lbr. Co. v. Britton, 105 Miss. 592, 62 So. 648; Copiah Hardware Co. v. Johnson, 123 Miss. 623, 86 So. 369.

And the decisions of the court in the above cases, being the law as it was at the time of the making of the contract, is written into the contract, becomes and is a part thereof.

Tucker Printing Co. v. Bd. of Suprs., 171 Miss. 608, 158 So. 336; Wisconsin Lbr. Co. v. State, 97 Miss. 571, 54 So. 247.

Counsel for appellant recognizes the well settled and fundamental rule that the law announced in the former decisions of this court fixed a rule of property covering land titles so as to affect the rights of parties covered by contracts entered into upon the sound decisions fixing the rule of property, while, these decisions remained the law of the land.

Hardwood Co. v. Burks, 149 Miss. 327, 115 So. 585.

There was a reason for these contracting parties to follow the law as written and accepted by the Supreme Court of the State of Mississippi, and this reason is apparent of record as the court will find that every conceivable question which could be raised and every conceivable attack which could be made on a timber deed had been made or was being made on these deeds in Pearl River County, and in the counties adjacent thereto. This will be seen from the following cases:

Pearl River County v. Wyatt Lbr. Co., 270 F. 26; Pearl River County v....