Opinion
3 Div. 24.
January 19, 1933.
Appeal from Circuit Court, Lowndes County; A. E. Gamble, Judge.
Jos. R. Bell, of Hayneville, and Erle Pettus, of Birmingham, for appellant.
Conditions such as that set out in paragraph 3 may be enforced. Hitt Lbr. Co. v. Cullman, 200 Ala. 415, 76 So. 347; Libby v. Winston, 207 Ala. 681, 93 So. 631. This stipulation is a reasonable one, and by it appellee had only one right of entry, and, failing to comply with the condition, forfeited his right of re-entry. Lowery v. May, 213 Ala. 68, 104 So. 5. The grant is one made upon condition, as stated in the contract. 2 Devlin on Deeds (3d Ed.) 1815; Gray v. Blanchard, 8 Pick. (Mass.) 284. The words used in the contract are apt to create the condition, and the grantor had the right to make such conditional grant. Libby v. Winston, supra; Murphy v. Schuster Spgs. L. Co., 215 Ala. 412, 111 So. 427; Alliston L. Co. v. Robinson, 219 Ala. 644, 123 So. 15. The purpose of the condition was to preserve the right of the landowner, heirs or assigns, the right of possession and use as soon as cutting was completed, and to save and preserve young timber. The remedy at law is inadequate, and a court of equity will declare a forfeiture. Lowery v. May, 213 Ala. 68, 104 So. 5; Shannon v. Long, 180 Ala. 129, 60 So. 273. A sale of growing timber passes no interest in the soil. The right to take possession of the timber can be executed only by entering and serving it, and this only within the specified time. Christopher v. Curtis-Attalla, 175 Ala. 490, 57 So. 837; Shepard v. Mt. Vernon L. Co., 192 Ala. 323, 68 So. 880, 15 A.L.R. 23.
Calvin Poole, of Greenville, for appellee.
In construing the deed, the duty of the court is to ascertain as far as possible the grantor's intention, and, in doing so to look to the whole instrument. Cobbs v. U.S. N. Co., 202 Ala. 333, 80 So. 415; First Nat. Bank v. McIntosh, 201 Ala. 649, 79 So. 121, L.R.A. 1918F, 353; Lowery v. May, 213 Ala. 66, 104 So. 5; Zimmerman v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am. St. Rep. 58. And to the situation of the parties. 2 Devlin on R. E. (3d Ed.) 1508. Deeds of bargain and sale, for a valuable consideration, are to be construed most strongly against the grantor and in favor of the grantee. Vizard v. Robinson, 181 Ala. 349, 61 So. 959; Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A. (N.S.) 719; 2 Devlin on R. E. (3d Ed.) 1563. Conditions tending to destroy estates are not favored in law. Elyton Land Co. v. S. N. R. Co., 100 Ala. 396, 14 So. 207; 1 Tiffany on Real Prop. 162; 8 R. C. L. 1110; Magnetic Ore Co. v. Marbury Lbr. Co., 104 Ala. 465, 16 So. 632, 27 L.R.A. 434, 53 Am. St. Rep. 73; S. A.L.R. Co. v. Anniston Mfg. Co., 186 Ala. 264, 65 So. 187; Porter v. Henderson, 203 Ala. 312, 82 So. 668; Hitt Lbr. Co. v. Cullman Co., 200 Ala. 415, 76 So. 347; Lowery v. May, supra. The fact that the words "conditions and limitations" are used in the deed itself does not necessarily mean that they are to be so construed. Zimmerman v. Daffin, supra. Until all timber conveyed has been cut and removed, the grantee and its assigns have the right to cut and remove at any time within fourteen years. Robertson v. Little, 200 Ala. 582, 76 So. 940; Code 1923, § 6959.
The amended bill rests upon the theory that defendant's property and rights under the contract conveyance made an exhibit thereto have been forfeited by a violation of the provisions of paragraph 3 of the "conditions and limitations" appearing in said instrument, and its cancellation and annulment is prayed. Clauses of this character have been considered as intended for the protection and preservation to the estate of the future growth of the timber, and construed as having reference to the beginning by the purchaser of a substantial cutting of the timber, as distinguished from a mere "casual or sporadic cutting." Lowery v. May; 213 Ala. 66, 104 So. 5, 15; May v. Lowery, 214 Ala. 230, 107 So. 67. In the latter case it was held that such a provision was a restrictive covenant entered into for the purpose of protecting the substance of the estate retained by the grantor, and in each of the above noted authorities the holding was that the clause was not a condition subsequent, but a covenant.
We think the conclusion there reached is sound, supported by the authorities, and is controlling here.
Deeds of bargain and sale (and the instrument here is of this character) for a valuable consideration are to be construed most strongly against the grantor and in favor of the grantee, and, of course, in the matter of construction it is the duty of the court to look at the whole conveyance, the circumstances under which the contract was made, the relative position of the parties, and the purpose and object designed to be accomplished. The intention of the parties to the instrument, when clearly ascertained, is of controlling efficacy. Cobbs v. Union Naval Stores Co., 202 Ala. 333, 80 So. 415; Seaboard A.L.R. Co. v. Anniston Mfg. Co., 186 Ala. 264, 65 So. 187.
It is also well settled that conditions subsequent are not favored in law, and must be strictly construed "because they tend to destroy estates, and a vigorous exaction of them is a species of summum jus, and in many cases hardly reconcilable with conscience. And if it be doubtful whether a clause in a deed imports a condition or a covenant, the latter construction will be adopted." It is also recognized that the fact that the grantee cannot be placed in statu quo is an important factor in determining the question of forfeiture. And, likewise, if the grantor has other adequate remedy at law or in equity, as for illustration here in point, injunctive relief restraining the use of the property beyond the limitation or restriction, a forfeiture will not be declared. Seaboard Air Line R. Co. v. Anniston Mfg. Co., supra; Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am. St. Rep. 58.
The word "condition" used in the conveyance is not of controlling effect, and specially, when considered with all the language, including the word "limitations" with which it is directly connected. Murphy v. Schuster Springs Lumber Co., 215 Ala. 412, 111 So. 427; Zimmerman Mfg. Co. v. Daffin, supra.
The consideration, which presumably has been paid, was a very substantial sum, and there is no pretense the grantee can be placed in statu quo. In the sixth paragraph is an express provision for the termination of all rights of the grantee, but no such language is found in paragraph 3, here considered.
The first paragraph under "conditions and limitations" expressly provides against the cutting or removal of any timber from said lands until the payment of the purchase price. By way of illustration, if it be assumed the grantee had cut and removed the timber from one forty out of this large body of land, without having paid for the same, it would be unreasonable to suppose the parties intended that immediately upon the violation of said clause the grantee forfeited all title and rights to the timber, and the instrument was subject to cancellation. And it does not appear that the first clause is any less important or less free from a condition subsequent construction than the third.
If the grantor, as previously noted, has other adequate remedy, this is considered very persuasive against any forfeiture, and, in May v. Lowery, 214 Ala. 230, 107 So. 67, it was held, as against a violation of such a restrictive covenant, the grantor has the right to injunctive relief.
So in the instant case, if the bill be construed as disclosing a substantial cutting upon some of the forty-acre tracts, and any violation of this restrictive covenant, it would seem that the remedy by way of injunctive relief argues rather persuasively against a forfeiture, and answers the argument of appellant concerning the injury to be suffered by a violation of this clause. But the bill as framed rests upon no such theory, and seeks to have the conveyance annulled and a forfeiture declared.
We have carefully read Libby v. Winston, 207 Ala. 681, 93 So. 631, and Hitt Lumber Co. v. Cullman Coal Coke Co., 200 Ala. 415, 76 So. 347, most strongly relied upon by appellant, but the language used and the connection with which it was so used differ materially from the instrument here considered, and are readily distinguishable.
As hereinabove stated, we think the cases of Lowery v. May, supra, and May v. Lowery, supra, ample authority in support of the chancellor's ruling, and we forego further discussion.
Let the decree be affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.