Opinion
No. 31149.
April 30, 1934.
1. VENDOR AND PURCHASER.
Where possession is delivered to vendee under binding contract of sale, vendor retaining title until purchase money is paid in full, transaction is, in legal effect, same as conveyance of title and taking of security by way of mortgage.
2. MORTGAGES.
Stranger to mortgage cannot interpose mortgage or any of its terms as defense against mortgagor seeking to recover specific property or damages for its injury or destruction.
3. LOGS AND LOGGING. Provision in contract for sale of timber rights, obligating vendee to procure release before cutting particular tract as evidence of payment on total purchase price, was for benefit of vendor, and could be waived.
Contract for sale of timber rights provided for the payment of a total consideration, but required only a small cash payment, the balance to be paid from proceeds of operation of sawmill plant and the progressive utilization of the timber. The contract further provided that, after the vendee had cut and manufactured stipulated part of timber, then, as to further cutting, the vendee was to make stipulated payments which were to be credited on the total purchase price and interest, and which designations and payments should be evidenced by a release of the particular lands covered by the designation.
4. APPEAL AND ERROR.
Defendant cannot raise questions which properly belong only to other parties and which those other parties may rely on or waive as they see fit.
5. LOGS AND LOGGING.
Owners of timber tract, as condition precedent to cutting of timber by vendee of timber rights, held not entitled to assert vendee's failure to procure release of particular tract as required by contract between vendee and his vendor which owned timber by mesne conveyances from owners.
APPEAL from Chancery Court of Noxubee County.
E.M. Livingston, of Louisville, and W.B. Lucas, of Macon, for appellant.
The words in the deed are construed most strongly against the grantor.
Soriar v. Harrison County, 50 So. 443.
When the vendor by lawsuits and divers interferences has prevented the vendee from cutting and removing timber and trees within the time limited in the deed, the vendee's right to a reasonable time thereafter in which to remove will be declared and enforced by an appropriate decree in equity.
Roberson v. Little, 76 So. 940; 34 L.R.A. (N.S.) 120.
Where the owner of land sold certain timber thereon to be removed within a reasonable time, and afterwards prevented removal by threatening to shoot the purchaser if he removed it and it was not removed in the usual time, the owner is estopped by his conduct from asserting that it was not removed within a reasonable time.
Walker v. Cox, 96 So. 707; Hurst v. Taylor, 107 S.W. 743; Peshtigo Lbr. Co. v. Ellis, 100 N.W. 834; U.S. v. Mason Lbr. Co., 172 Fed. 714; Halla v. Rogers, 176 Fed. 709; Hampton v. Cope, 139 S.W. 937; Saunders v. Clark, 22 Iowa, 275; Monroe v. Bowin, 26 Mich. 529.
Green, Green Jackson, of Jackson, for appellant.
Appellees had no right at this date in said timber whereunder they might with force of arms drive off appellant in good faith claiming under a contract.
Ladnier v. Ingram Day Lbr. Co., 100 So. 369, 135 Miss. 632; Rogers v. Lbr. Mineral Co., 115 Miss. 339, 76 So. 145; Wheat v. J.J. White Lbr. Co., 116 So. 104, 150 Miss. 615; Finkbine Lbr. Co. v. Saucier, 116 So. 737, 150 Miss. 446; Clark v. Ingram Day Lbr. Co., 90 Miss. 479, 43 So. 813; Smith v. Salmen Brick Lbr. Co., 118 So. 179, 151 Miss. 329; Miller v. Mims, 150 So. 191.
Appellant having purchased and agreed to pay approximately six hundred thousand dollars for the property here in issue, together with other property, was vested by that contract with right to cut and thereasto full proof was made.
Lay v. Great Southern Lbr. Co., 79 So. 822, 118 Miss. 636; D'Aquilla v. Anderson, 120 So. 437, 153 Miss. 549; Wilson v. Kuykendall, 112 Miss. 486, 73 So. 344; 66 C.J. 703; Thompson v. Wheatley, 5 S. M. 506; Wolfe v. Dowell, 13 S. M. 108; Marble v. Whaley, 33 Miss. 157; Griffith Mississippi Chancery Practice, sec. 128; Moody v. Farr, 33 Miss. 192, 210; Watson v. Sawyers, 54 Miss. 64, 66; Kitchens v. Harrall, 54 Miss. 474; Rembert v. Key, 58 Miss. 533, 536; Carpenter v. Douglas, 61 So. 162, 104 Miss. 74; Masonite Corporation v. Burnham, 164 Miss. 840, 146 So. 293; Miss. Power Light Co. v. Smith, 153 So. 376, 169 Miss. 447; 63 C.J. 902; Black v. Robinson, 61 Miss. 54; Miller v. Wesson, 58 Miss. 831; Roberson v. Little, 76 So. 940; 34 L.R.A. (N.S.) 120.
Appellant, under said contract, need not have done a vain thing, when appellee assumed absolutely that no right in the timber could, by any act done, have been obtained.
Brooms Legal Maxims (7 Ed.); City Bank Farmers' Trust Co. v. Schnader, 78 L.Ed. 373; Hills v. Bank, 105 U.S. 319, 26 L.Ed. 1053; Procter v. Sherman, 2 F.2d 165.
Appellee, having admitted the right of Griffin, wherefor cancellation was sought, may not take the law into his own hands.
New Orleans, etc., Co. v. Moye, 39 Miss. 374; Currie v. Railroad Co., 61 Miss. 730; 37 C.J. 287.
Denial of execution of contract was not sufficiently made under section 1587, Code of 1930.
Section 1587, Code of 1930; Wanita Mills v. Rollins, 75 Miss. 253, 22 So. 819; Brown v. Mortgage Co., 86 Miss. 388, 38 So. 312.
Misjoinder, complainant, Lamiss Lumber Corporation, not having been objected to prior to hearing, may not be taken advantage of.
Section 514, Code of 1930; Stauffer v. Garrison, 61 Miss. 67; Walker v. Hill, 66 Miss. 390; Darriell v. Dodds, 78 Miss. 912, 30 So. 4; Avera v. Williams, 81 Miss. 714, 33 So. 501; McInnis v. Rather, 111 Miss. 55, 71 So. 264; Belt v. Adams, 125 Miss. 387, 87 So. 666; Aven v. Singleton, 132 Miss. 256, 96 So. 165; Griffith Mississippi Chancery Practice, page 147, sec. 147.
Magruder, Walker Magruder, of Starkville, for appellees.
Insofar as the law of this case is concerned, appellees stand on the proposition that neither John Jones nor Jessie James nor the J.M. Griffin Lumber Company had any right to confiscate Jernigan's remainder interest in the timber at issue without title thereto.
It is a certain proposition that no stranger to this title, no mere trespasser, could maintain an action in equity for specific performance and injunctive relief; and that is appellant's difficulty, an insurmountable obstacle.
Gilchrist-Fordney Co. v. Thigpen, 114 Miss. 182; Section 169, Griffith's Chancery Practice; Brown v. Bank, 31 Miss. 454; Hoy v. Hansborough, Freeman's Chancery Reports 542; Meek v. Humphreys County, 133 Miss. 386; Bank v. Phillips, 71 Miss. 54.
In suits to remove clouds from title, Griffith applies the general principle that complainant must be vested with title under his bill and evidence as a condition for relief.
Section 211, Griffith's Chancery Practice.
It is announced in all of these cases as a fundamental condition of recovery that complainant must be vested with title, regardless of the strength or the weakness of defendant's cause or even the entire absence of any title whatever in defendant.
The instant cause was not exactly a bill for the removal of alleged clouds on title; but that is its substantial intent and purpose, a purpose which cannot possibly succeed unless complainant alleges and proves its own title, in which respect the J.M. Griffin Company has entirely failed.
L.L. Martin, of Macon, for appellees.
We contend that all the issues in this case were correctly settled by the learned chancellor as shown in his opinion which in effect under the decree rendered gives the Federal Land Bank its prior lien on said timber.
There was serious conflict in the evidence as to the expiration of the time limited in said timber deed, and as to the exact date that said deed was executed. All of which has been by the decree of the learned chancellor resolved and adjudicated in favor of these defendants, although we recognize the fact that the chancellor as shown in his opinion was guided in making up his decisions by the facts as set forth in his opinion and law applicable thereto, and believing that on these issues, which have been fully covered in the brief of my associates, Magruder, Walker and Magruder, this case was correctly decided and that it was not necessary for a decision on the other issues involved, we do not now think it necessary to further discuss the other issues involved in this case, as to which the evidence is in conflict.
Argued orally by Garner Green, for appellant, and by L.L. Martin and W.W. Magruder, for appellees.
The Lamiss Lumber Corporation was the owner of a sawmill, a logging railroad, and a large tract of timber and timber lands in this state. On the 3d day of May, 1932, the said owner entered into a written contract with the J.M. Griffin Company, appellant herein, the effect of which, taking all its numerous provisions into consideration, was that the owner, for a total consideration of the principal sum of about five hundred eighty-five thousand dollars, agreed to sell to the Griffin Company, and the latter agreed to buy, all said property, and to pay the entire of said consideration with interest, and it was a part of said agreement that immediate possession would be delivered to the purchaser, and such possession was delivered. If, however, it may be said that, because of the obscurity of some of the many elaborate provisions of the contract, there is doubt whether the contract absolutely obligated the purchaser to purchase all the property and to pay the entire sum mentioned with interest, we may observe that there is no doubt that the seller agreed to sell, and the purchaser obligated itself to purchase, and in any event to pay for, all the timber held by timber deeds, and which contained a time limit for removal; and, since the timber involved in the case now before us is of that class, this is sufficient so far as concerns the principles to be applied.
Apparently only a comparatively small cash payment was made. The contract evidences the general purpose of the parties thereto that the purchaser was to be enabled to pay the balance or the larger part thereof by the proceeds of the operation of the plant and the progressive utilization of the timber. It was therefore provided in the contract of sale that the purchaser should have the right to cut the timber and manufacture the same in said sawmill plant, but that, after the first four million feet had been cut, then as to further cuttings the purchaser before cutting should designate the descriptions of the timber proposed to be cut, and should pay in cash according to the respective estimates attached to the contract at the rate of four dollars and fifty cents per thousand feet for the descriptions so designated, these payments to be credited on the total purchase price and interest, and which designations and payments should be evidenced by a release, so-called, of the particular lands covered by said designations.
Appellees had conveyed to the predecessor in title of the Lamiss Lumber Corporation the timber on the lands here particularly involved, together with all the usual logging rights of way, and this timber was included in the contract between Lamiss Corporation and the Griffin Company. The timber deed by appellees appears of record to be dated November 8, 1923, and the period granted for the removal of the timber appears on the deed to be ten years. On September 6, 1933, the Griffin Company went upon these lands of appellees, and to which appellees had granted the timber together with the rights of way aforesaid, and was preparing to cut the timber thereon when the servants of the Griffin Company were driven therefrom by one of appellees with force and arms, and upon the claim that the timber rights on this particular land had expired. The Griffin Company thereupon filed this suit to enjoin appellees from interfering with said cutting, and praying that the court adjudge the Griffin Company to be entitled on final decree to an extension of time for the removal of the said timber equal to the period from September 6, 1933, to November 8, 1933, this period of time to run from the date of final decree, weather conditions also to be considered.
The Lamiss Lumber Corporation was not joined as a party in the said suit, but the defendants did not raise that point in any appropriate manner either before or during the progress of the hearing in the trial court. It was shown by the testimony that at all times up to and including the day of trial the Griffin Company was in the possession of said property under said contract, and that all the terms thereof had been and were being complied with by the Griffin Company; and the testimony shows that the seller has had on the ground a representative to see that its terms were complied with. But it did not specifically appear either in the pleadings or in the testimony whether, in fact, before attempting to cut the particular timber here involved, the Griffin Company had procured the release therefor, hereinabove mentioned, as a general requirement. And upon the argument appellees raised the point and relied thereon that, until the Griffin Company had obtained such a release for this particular timber, and showed such fact in evidence, it had no right to enter upon this particular timber, and in attempting to do so was a trespasser. The trial court sustained appellees' contention upon the point mentioned, and, acting upon that point alone, as shown by the record, dismissed the suit.
It has long been the settled rule in this state that, when possession has been delivered to the vendee under a binding contract of sale and purchase, and so long as that contract remains in force, the retention of title by the vendor until purchase money paid in full is in legal effect the same as conveying the title and taking security by mortgage. Tanner v. Hicks, 4 Smedes M. 294; Strickland v. Kirk, 51 Miss. 795; Watson v. Sawyers, 54 Miss. 64, 66. Or, as sometimes expressed, "the vendor . . . holds the legal title only as trustee for the vendee, . . . while the beneficial interest rests in the vendee." Carpenter v. Douglass, 104 Miss. 74, 82, 61 So. 161, 162, 425. The rule is general. 1 Pomeroy Eq. Jur. (4 Ed.), sec. 368. And it is equally well settled that a stranger to a mortgage cannot interpose the mortgage or any of its terms as an obstacle against the mortgagor seeking to recover either the specific property or damages for its injury or destruction. Illinois Central R. Co. v. Hawkins, 65 Miss. 200, 3 So. 410.
Here there was a perfect privity between the Lamiss Lumber Corporation and the Griffin Lumber Company; and on the face of the recorded deeds the Lamiss Corporation owned this timber by mesne conveyances from appellees. When the Lamiss Corporation made its contract to sell this property, including this particular timber, to the Griffin Company, and the latter agreed to buy and pay for it, and the latter was put in possession under the contract, all the terms of that contract were, in respect to the details of its performance, matters which concerned only the immediate parties thereto. The provision that, before cutting a particular piece of timber, the Griffin Company should procure a release from the seller, was a stipulation solely for the benefit of the seller, and was one which the seller could waive, 38 C.J. p. 178; and no other person than the parties to that contract had any interest as to whether it was or was not waived. Thus there comes into full operation the principle often announced and which has already been noted as having been applied in effect in the Hawkins Case, supra, that it is not usually competent for a defendant to raise questions which properly belong only to other parties and which those other parties may rely on or waive as they see fit. See Griffith, Miss. Chan. Pr., sec. 585, and cases cited in the notes thereto. This is not a proceeding to confirm title or to cancel clouds on title, and there is no other unusual feature which takes this case out of the general rule just stated, but in our opinion the facts here bring the point relied on by the defendants completely within that rule.
Other matters are presented and argued by the parties in their briefs, but, since the record shows that the court acted solely upon the point above dealt with, we must confine ourselves to that point, else we would be reviewing, on appeal, matters that have not been adjudged by the trial court.
Reversed and remanded.