Opinion
3 Div. 861.
January 17, 1929.
Appeal from Circuit Court, Butler County; A. E. Gamble, Judge.
Calvin Poole, of Greenville, and Stevens, McCorvey, McLeod, Goode Turner, of Mobile, for appellant.
The tender for extension may be made within a reasonable time after the termination of the first period. Stark Oldham v. Burford, 215 Ala. 68, 109 So. 148. The title to the timber remained in the grantor after the time for removal had expired. C. W. Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am. St. Rep. 58; Wright v. Bentley Lumber Co., 186 Ala. 616, 65 So. 353; Mt. Vernon L. Co. v. Shepard, 190 Ala. 574, 67 So. 286; Lowery v. May, 213 Ala. 66, 104 So. 5; Christopher v. Attalla L. Co., 175 Ala. 484, 57 So. 837; Vizard v. Robinson, 181 Ala. 349, 61 So. 959; S. A. L. v. Anniston, 186 Ala. 264, 65 So. 187; West v. Maddox, 193 Ala. 613, 69 So. 101; Shepard v. Mt. Vernon L. Co., 192 Ala. 333, 68 So. 880, 15 A.L.R. 23; Moore v. McAllister, 205 Ala. 512, 88 So. 643; Hanby v. Dominick, 206 Ala. 539, 90 So. 287; Libby v. Winston, 207 Ala. 681, 93 So. 631. The foregoing having become a rule of property, the statute, Code 1923, § 6959, cannot destroy it. McGill v. Holman, 208 Ala. 9, 93 So. 848, 31 A.L.R. 941 (dissenting opinion). Even so, the statute would not here apply; it being otherwise provided in the deed. Code 1923, §§ 6959, 6900; Dickson v. Van Hoose, 157 Ala. 465, 47 So. 718, 19 L.R.A. (N.S.) 719. The deed was executed after enactment of said statute, and must be held to have been executed in contemplation thereof. Mays v. Williams, 27 Ala. 267; Armstrong v. Bufford, 51 Ala. 410. Payment for the extension was properly to be made only to the personal representative of the grantor. Nichols v. Day, 128 Miss. 756, 91 So. 451; 3 Pom. Eq. Jur. (4th Ed.) §§ 1161, 1163; 13 C. J. 855; 28 Cyc. 36; 3 Paige on Contracts, 2199. The situation shown suspended the duty of complainant to make tender so long as it continued. Lehman, Durr Co. v. Collins, 69 Ala. 127; Houbie v. Volkening, 49 How. Prac. (N.Y.) 169; Hale v. Patton, 60 N.Y. 235, 19 Am. Rep. 168; Noyes v. Clark, 7 Paige (N.Y.) 179, 32 Am. Dec. 622. The only requirement, then, was that tender be made within a reasonable time after there was some one authorized to receive it. Cornish v. Suydam, 99 Ala. 620, 13 So. 118; Lowy v. Rosengrant, 196 Ala. 342, 71 So. 439; Allen v. Farmer, 21 Ala. App. 526, 109 So. 555.
Powell Hamilton, of Greenville, for appellees.
Failing to cut and remove the timber within the seven-year period, the title reverted to the heirs of the grantor. Appellant lost its right to an extension by failing to take steps to that end prior to the expiration of the period. Code 1923, §§ 6956-6959; Acts 1919, p. 836; Stark Oldham v. Burford, 215 Ala. 68, 109 So. 148; Murphy v. Schuster Springs L. Co., 215 Ala. 412, 111 So. 427; Evans v. Kittrell, 33 Ala. 449; Granville v. Atkinson (D.C.) 234 F. 424; Mueller v. Nortmann, 116 Wis. 468, 93 N.W. 538, 96 Am. St. Rep. 997; Bateman v. Kramer L. Co., 154 N.C. 248, 70 S.E. 474, 34 L.R.A. (N.S.) 615.
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 within 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 personalty, 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 other hand, should the demand and tender have been made upon the personal representative, the appellant has not shown proper diligence in this respect, as it could and should have taken steps to have an administrator appointed upon default of those first entitled to administer. Subdivision 4 of section 5742 of the Code of 1923.
We are next requested to determine the status of the title to the timber, notwithstanding the loss of the appellant of the right, under the conveyance, to cut and remove same from the land. Under the former decisions of this court, construing timber deeds of this character, the title to the timber remained in the vendee, notwithstanding he had no right to enter upon the land and remove same after the expiration of the time limit, which said decisions are based upon Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am. St. Rep. 58, and the appellant here would have the legal title to the timber. But in the first place the Daffin Case, supra, as well as subsequent decisions of this court following same, are not in line with the weight of authority, and resulted in the anomalous condition of holding that the vendee was the legal owner of the timber, but had no right to enjoy the benefit of same without invading the rights of the vendor and subjecting himself to damage suits. So the Legislature, by the act of 1919, now section 6959 of the Code of 1923, provided that the title to the timber not cut and removed from the land within the time limit, as fixed by the deed, or within 10 years when the time limit was not so fixed, shall revert to the grantor.
It is no doubt correct that the Daffin Case, supra, and the decisions following same, should be regarded as a rule of property as to all conveyances made prior to the act of 1919, now sections 6956-6959 of the Code of 1923. The present conveyance, however, was made subsequent to said act, and must be governed thereby. Nor are we persuaded that the Legislature exceeded its power or violated any constitutional provision in the enactment of the aforementioned statute. It is analogous to our statute of uses and trusts, abolishing or changing the rule in Shelley's Case, and limiting or fixing the period for which lands may be leased, and which has been a part of our statutory system for a half century or longer.
The decree of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.