Summary
In Finkbine Lumber Co. v. Saucier, 150 Miss. 446, 116 So. 736, it was held that the right to reversion of timber remaining on the land after expiration of the period of twenty years given purchasers of timber within which to remove same did not pass to grantee under the deed conveying the land with reservation of timber, since reservation excluded timber from description of property conveyed and showed intention on part of grantors not to convey it.
Summary of this case from Sumter Lbr. Co. Inc. v. SkipperOpinion
No. 27105.
April 23, 1928.
1. DEEDS. Deed conveys only property described and which it manifests intention on grantor's part to convey.
A deed conveys only the property described therein and which it manifests an intention on part of grantor to convey.
2. LOGS AND LOGGING. Right to reversion of timber remaining on land after expiration of period for removal did not pass under deed conveying land with reservation of timber.
Right to reversion of timber remaining on land after expiration of twenty years given purchasers of timber within which to remove same did not pass to grantee under deed conveying land with reservation of timber, since reservation excluded timber from description of property conveyed and showed intention on part of grantors not to convey it.
3. LOGS AND LOGGING. Grantors conveying land under warranty deed could reserve timber, though they had only possibility of reverter ( Hemingway's Code 1927, section 2473).
Grantors conveying land under deed, which under Code 1906, section 2817 (Hemingway's Code 1927, section 2473), embraced all five common-law covenants of warranty, had right to reserve timber even though they did not then own timber but had merely possibility of reverter, since, if timber had been included, covenants of warranty would have been broken and possibility of reverter, though inalienable at common law, would have passed to grantee when grantors reacquired timber under possibility of reverter.
4. LOGS AND LOGGING. Timber not removed by purchasers during period for removal reverted to and was owned by grantors conveying land, before time for removal expired, with reservation of timber.
Where grantors conveyed timber with right to remove same within twenty years, and, before twenty years expired, conveyed land to another with reservation of timber, timber remaining at expiration of twenty years reverted to and was owned by grantors, since timber on land may be owned by one person and the land by another.
APPEAL from chancery court of Pearl River county; HON. T.P. DALE, Chancellor.
U.B. Parker, for appellant.
A decision in this case involves a construction of the deed from appellees to Laurence Ladner. It must be kept in view that prior thereto appellees had sold the timber outright and gave the appellant's predecessor in title twenty years in which to cut and remove the same, and both the purchaser and the seller had every reason to believe that appellant would exercise its right to remove the timber within that time. The attempted reservation was made by appellee for the purpose of protecting himself against a breach of warranty. If no mention had been made of the timber in this deed, the warranty would have been broken, because the timber standing thereon was a part of the land; and a plain warranty deed, without any mention, would have warranted the title to both land and timber. Saucier knew he had sold the timber, and for that reason the wording of his deed indicates that the timber was not included in the deed. It was not reserved to him, but was reserved from the deed. All the pine timber was sold and not a part of it. On June 30, 1915, when Eli Saucier made the conveyance to Laurence Ladner, he did not own one foot of the timber. He had absolutely no title to the timber. He owned the dirt and that ownership carried with it the right to have such of the timber as was not cut within the time limit revert to him, as the owner of the fee. Saucier did not own the timber and could not reserve the same. It was not his to reserve, as is amply stated in one of the decisions hereafter cited. He owned a reversionary interest in the timber, but he owned this by reason of his ownership of the land, and, had it been desired that such of the timber, as was not cut by defendants at the end of the twenty years, should revert to him and not to his grantor, he should have reserved such an interest in the land and the timber on the right to have the timber revert to him and the right to have the land burdened with such timber, as reverted to him at the end of twenty years; any ambiguity or doubt is to be resolved in favor of the grantee. A reservation in favor of a grantor is to be construed more strictly than a grant. In Barataria Canning Company v. Ott, 84 Miss. 737, it is stated: "In order for a reservation in a deed to be operative it must withhold from the grant something which would have passed by the deed, but for the reservation."
In Wilson v. Buffalo Colleries Co., 91 S.E. 449, the supreme court of West Virginia, in discussing a reservation attempted to be made in a deed conveying the fee, said: "That Mrs. Deskins reserved nothing to herself by the clause in her deed to Vicie Collins above quoted is perfectly obvious. Though she used the word "reservation" the context clearly proves she merely meant to except from the operation of the deed the right she had granted away. Things she had parted with and could not reserve constituted the subject-matter of her language. It being logically and physically impossible to reserve them, she must have intended by what she said to except them and nothing more, for the terms of the clause do not extend beyond them in any sense. But she excepted what she had conveyed to Wilson, the title to the standing timber eighteen inches and over in diameter.
Plaintiffs in the court below presented the case of Walters v. Sheffield, 78 So. 539. Without a very close reading of this case, it might be thought that the rule of law announced is adverse to appellant. In that case the specific reservation made in the deed construed following the description of land, is as follows: "The said parties of the first part reserve unto themselves, and from the operation of this deed all the timber of any kind and nature, standing on said land, together with all of the tenements, hereditaments and appurtenances with every privilege, right, title, interest and estate, dower and right of dower reversion, remainder and easement thereto belonging or in anywise appertaining thereto and to hold the same in fee simple forever." This case in stating that "trees growing or standing upon land are not distinguishable in their character of real estate from the soil itself until they are actually severed from the soil," cites as its sole authority Mississippi cases. They also relied on Stewart v. Herring, 138 Miss. 719. This case is not in point. We think the case supports defendants' contention. This Mississippi case and Wilson v. Buffalo Colleries Company, supra, absolutely settle the question that Saucier could not at the time of his conveyance in 1915 reserve the timber. In Sutton v. Gray Lbr. Co., 60 S.E. 2, the Georgia supreme court had before it the question of a reservation in a deed to land where the timber had been previously sold, with a right to cut within five years, which deed contained a clause following the description of the land — "The saw mill timber heretofore sold to Henry Banks excepted." "Held, that the timber on the described land, not cut within the five years, did not revert at the expiration of the time limit to Sutton or his heirs (the timber only), but became the property of the then owner of the land."
Complainant relied upon the case of Levis v. Parrot, 46 S.E. 647. In the Levis case the timber deed provided that all timber remaining on said land after the expiration of five years would revert to the grantor. In International Lumber Company v. Straude, 175 N.W. 909, the Minnesota supreme court had under consideration a conveyance of land, on which the timber had previously been conveyed with fifteen years in which to cut and remove, and it said that the grantor in such deed had a contingent reversionary interest in the timber which he might convey or reserve to himself in a deed of the land subsequently executed. The supreme court of our state in the 84th Miss. 757, supra, plainly stated that, "A reservation in a deed must necessarily be of something which belongs to the grantor at and before the execution of the deed." In Derr Creek Lumber Co. et al. v. Sheets, 83 S.E. 81, the supreme court of West Virginia construing a supposed reservation in a deed where the timber had previously been sold with five years to cut and remove which time had not then expired says, "that Ervin and his wife held the right of reversion before they conveyed to Sheets cannot be gainsaid. Did they by their deed to Sheets withhold unto themselves that right of reversion, or did it pass to Sheets by their deed? If they withheld the right, the assignment made to the lumber company by Ervin passes his interest therein, but not the whole interest which plaintiffs claim through it. If they did not withhold the right of reversion, it passed with the land to Sheets." In Hornthal et al. v. Howcott et al., 70 S.E. 171, the North Carolina court had under consideration a deed where an owner conveyed the timber on his land, not less than eleven inches on the stump when cut, with the right to cut and remove the same within four years. Before the expiration of the four years, he conveyed the land to a grantee by a deed stipulating, "The timber having been previously sold to John L. Roper Lumber Company, and is excepted from this deed." Held, "That the deed conveyed to the grantee all the land and all the timber thereon not cut and removed within the specified time." In the supposed reservation under construction Saucier did not reserve the timber unto himself. It was merely "reserved from this deed." Why did he reserve it from this deed? Because he did not own it. Because he had previously sold it. Because it was necessary to withhold the timber from the deed to protect his warranty. They were not dealing with the timber. They were dealing with the land on which the timber had previously been sold. In Shannonhouse et al. v. Shannonhouse et al., 84 S.E. 259, the court had under construction a deed where the timber was sold with five years in which to cut it, and an extension of three years upon the annual payment of six per cent on the price, the interest to belong to the original owner and not to any purchaser, and the purchaser of the timber afterwards bought the land. This case cites the Hornthal case, supra. Also, cites Bateman v. B. Lumber Company, 70 S.E. 474, 34 L.R.A. (N.S.) 615, and says, "applying these principles, if the timber should not be cut within five years, it would then belong absolutely to the defendants, as purchasers of the land, and they could cut it when they wished to do so. In other words, when the defendants bought the land, they, also, bought the right to extend the time for cutting and the latter was merged in the title to the land, and therefore, no interest can become due." In Brodack et ux. v. Morsbach et al., 80 P. 275, the Washington supreme court had under construction a timber deed and the rights of purchasers of the land on which such timber stood and it is said that, "purchasers of land, with full knowledge of a prior contract for the sale of timber growing thereon, acquired no interest in the timber, except the right to have it revert to them in case it was not removed under the contract of sale." In French v. Sparrow Kroll Lumber Co., 97 N.W. 961, the Michigan supreme court announces the law applicable to this case in the following words: "An owner of land who has sold timber thereon, giving the purchaser a stated time in which to remove the same, who subsequently conveys the land by a deed containing an exception as follows: "Excepting, however, from this conveyance certain pine trees now standing on said land," does not acquire title to trees remaining on the land at the expiration of the time limit in the timber contract.
Lambden et al. v. West et al., 44 A. 797, the court of chancery of Delaware announces the same rule. Such as the construction placed upon the title to this timber and upon the Eli Saucier deed by defendants and its grantor, in 1923, when they obtained an extension of time in which to cut and remove the timber. They went to the owner of the fee for permission to burden his land with their timber. Eli Saucier, the complainant, had no title or interest in the land nor did he have any title or interest in the timber on March 19, 1923. Defendants had another year in which to cut and remove the timber and could and would have done so; but they paid for a service to the man who served them and made a sacrifice so to do. They paid Earvin Ladner for the use of his land while it was burdened with their timber, the timber which they had righteously bought and paid for and they paid the consideration for such services to the man who was rightfully entitled thereto. The case should be reversed and dismissed.
Hathorn Williams, for appellees.
The term land embraces not only the soil, but its natural produce (trees) growing upon and affixed to it. Harold v. Miller, 35 Miss. 700; Dantzler v. State (Miss.), 53 So. 1; McKenzie v. Shows, 70 Miss. 388, 12 So. 366, 35 Am. St. Rep. 654; Fox v. Pearl River Lumber Company, 80 Miss. 1, 31 So. 583. The owner of land may create as many separate estates therein as its nature is susceptible of under the law, so long as his contract and his acts creating such estates do not violate the law. He may give a fee-simple title to the standing timber on the land. Butterfield Lumber Company v. Guy (Miss.), 46 So. 78. He may sell the timber to a purchaser upon condition that he shall cut and remove the same from the premises within a term of years, in which case the vendee, in order not to lose his title to the timber must cut and remove the same within the time limited in the deed. Clark v. Ingram-Day Lumber Company (Miss.), 43 So. 813. Under this timber deed with a time limit within which to cut and remove the same the purchaser gets an estate for years in the timber and may become the absolute owner of the timber upon condition that he cuts and removes the same within the time limited in the deed; but if he fails within the time to cut and remove the timber, his estate in the timber ceases and the timber reverts to the grantor. Clark v. Ingram-Day Lumber Company, supra.
An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him. 2 Blackstone Comm., see page 175, citing Co. Litt. 22; Spaulding v. Grigg, 4 Ga. 75, 80. See also 21 C.J., page 1016, par. 179, and authorities cited in the note. The nature of an estate in reversion, and the circumstance out of which it arises is given by Mr. Blackstone, 175, of Book 2, of his Commentaries: 21 C.J., 1018, par. 181.
Under the authority of Harold v. Miller, supra, and the other Mississippi cases cited above standing timber is land, and can and must be conveyed as such. Under the authority of Butterfield Lumber Company v. Guy, supra, an estate in fee simple forever may be carved out of the land and created in the standing timber thereon. Under the authority of Clark v. Ingram-Day Lumber Company, supra, an estate for years may be created in standing timber conditional upon the purchaser cutting and removing the same from the premises within the term of years, and with the right within the said term of years to perfect his title thereto by cutting and removing the same from the premises, and that by such a deed the grantor has an estate in reversion in the timber, to be enjoyed by him after the expiration of the time limited in the deed to the purchaser in case the purchaser fails to cut and remove the same from the premises within said time. It thus appears under the authority of these decisions by our own supreme court that the owner of land may carve out two kinds of estates in the timber thereon, one a fee-simple estate forever in which the grantor of the timber would have no reversionary interest therein, and also an estate for years in the timber. This principle is expressly recognized by the supreme court of Mississippi in Stewart v. Herring, 138 Miss. 728, 103 So. 375, also Wheat v. J.J. White Lbr. Co., No. 26998, Docket of this court, both decided this term. In Wheat v. J.J. White Lbr. Co., supra, speaking of a timber deed containing a time-limit clause, the court said: "The grantor in such deed had a contingent reversionary interest in the timber, which he might convey or reserve to himself in a deed of the land subsequently executed." A case in point is Walters v. Sheffield (Fla.), 78 So. 539. To the same effect is Levis v. Parrott (Ga.), 46 S.E. 647.
A casual examination of the timber reservation contained in the deed in the two cases of Derr Creek Lumber Company v. Sheets (W. Va.), 83 S.E. 81, and Hornthal v. Howcott (N.C.) 70 S.E. 171, will demonstrate that in those cases at least, and perhaps in the other cases cited by counsel, that the intention of the party is affirmatively shown by and expressed in the reservation itself. The language in the Derr Creek case is in these words:
"The timber upon this tract of land was sold to E.M. Arbogast by E.N. Ervin, and is therefore reserved by the party of the first part in this deed." This language could hardly be construed as intended as a reservation of the timber for the benefit of the grantor, but on the contrary affirmatively shows that the very reason for making the reservation was because the timber had been sold. The same can be said of the language of the reservation in the Hornthal case, which is in these words: "The timber having been previously sold to John L. Roper Lumber Company, and is excepted from this deed." We have no such provision in the reservation by Saucier in his deed to Ladner. The chancellor did not err in overruling the said demurrer; and this case ought to be affirmed.
The appellees sued out an attachment in chancery against the appellant, a nonresident corporation owning land in this state, for the purpose of recovering from the appellant the value of timber alleged to have been owned by the appellees and to have been cut down and appropriated by the appellant. A demurrer to the bill of complaint was overruled, and the case has been appealed to this court in order to settle the principles thereof.
The allegations of the bill are, in substance, as follows:
On January 28, 1904, the appellees owned certain land and "conveyed to Leonard H. Field all the pine timber then standing and being on the said lands, together with the right to cut and remove the same at any time that said Field, his heirs or assigns, might desire within twenty years from the said 28th day of January, 1904;" that Field's interest in the timber came to the appellant by mesne conveyances. On June 30, 1915, the appellees conveyed the land to Laurence Ladner by a deed reading, in part, as follows: "I convey and warrant to Laurence Ladner . . . the land described as follows. . . . All pine timber on the above-described land is reserved from this deed." Laurence Ladner sold the land to Earvin Ladner, who, on March 19, 1923, executed to the Finkbine Lumber Trustees a deed to "all of the pine timber then growing, standing, lying, or being on" the land, with the right to cut and remove it within six years from the date of the deed. The Finkbine Lumber Trustees conveyed their interest in the timber to the appellant, the Finkbine Lumber Company, which cut and removed the timber within six years from March 19, 1923, but after the expiration of the twenty years allowed therefor in the deed from the appellees to Leonard W. Field.
The appellant's contention is that the appellees' right to the reversion of the timber remaining on the land after the expiration of the twenty years given by them to Field within which to remove the timber, passed to Ladner under the appellees' deed conveying the land to him. The ground of this contention is that the reservation of the timber in the deed from the appellees to Ladner is void, for the reason that "Saucier did not own the timber and could not reserve the same."
The question for decision is one of no difficulty if a very elementary rule of conveyancing is kept in view; i.e., a deed conveys only the property described therein and which it manifests an intention on the part of the grantor to convey. Under this rule it is wholly immaterial whether or not the appellees owned the timber when they conveyed the land to Ladner, for in either event the reservation thereof in the deed excludes it from the description of the property conveyed, and also clearly manifests an intention on the part of the grantors not to convey it. The deed from the appellees to Ladner, under section 2817, Code 1906 (Hemingway's 1927 Code, section 2473), embraces all of the five common-law covenants of warranty; and therefore two very good reasons appear for the right of the grantors to exclude the timber from the property conveyed by the deed;
(1) They did not then own the timber, and, had it been included in the property which the deed purports to convey, their covenants of warranty would have been broken.
(2) Under the deed by which the appellees conveyed the timber to Field, they had a possibility of reacquiring the timber by its reverting to them in the event it should not be cut and removed from the land within the time limited in the deed therefor. Ladnier v. Ingram-Day Lumber Co., 135 Miss. 632, 100 So. 369. It is true that this possibility, known as "a possibility of reverter" ( Crorow Hardwood Co. v. Burks [Miss.], 115 So. 585; Memphis Charles R.R. Co. v. Neighbors, 51 Miss. 412; Vicksburg Meridian Railroad Co. v. Ragsdale, 54 Miss. at page 216) was a bare possibility, and not one coupled with an interest (Challis's Real Property [3 Ed.] note on page 76), and therefore inalienable at common law. Nevertheless, had the timber not been excluded from the property conveyed by the appellees to Ladner, it would have passed to him under the warranties in their deed to him when they reacquired it under their possibility of reverter. Wheat v. J.J. White Lumber Co., No. 26,998 (Miss.), 116 So. 103, not yet reported.
That the land was not owned by the appellees when the time limit in their deed to Field for the removal of the timber therefrom expired is of no consequence, for, as this court has repeatedly held, timber on land may be owned by one person, and the land by another. It follows from the foregoing views that the timber had reverted to, and was owned by, the appellees when it was cut and appropriated by the appellant.
Affirmed and remanded, with leave to answer within thirty days after the filing of the mandate in the court below.
Affirmed and remanded.