45 So. 78 | Miss. | 1908
delivered tlie opinion of the court.
On March 15, 1892, George W. and Victoria Guy, for a consideration of $200, receipt of which is acknowledged, conveyed to the Norwood & Butterfield Lumber Company by warranty deed all the green pine timber on a certain tract of land, which is described in the deed. The Norwood & Butterfield Lumber Company subsequently conveyed this timber to the Butterfield Lumber Company; hence this suit against it. In 1906, Guy brought this suit in the chancery court of Lincoln county, praying that the title of the lumber company under the deed be canceled. It is alleged in the bill that the lumber company, under the deed, only obtained title to the timber on condition that it cut and remove same from the land in a reasonable time. It is also alleged that the lumber company had long since been notified to cut and remove the timber, but had not done so, and more than a reasonable time had elapsed within which it had the right to cut the timber, and, having failed and refused to do so, its right is forfeited. It is also alleged that Guy is'the owner of the land on which the timber stands and is nourished, that the land is useless to him so long as the timber is permitted to stand there, and the right asserted by the lumber company to go upon the land and cut the timber whenever it might choose to do so, together with the deed which they have to the timber, casts a cloud on his title, and he claims the right to have the' deed canceled. In the deed no such rights as are set forth in the bill of complaint are to be found. The deed is a simple conveyance by warranty in fee simple of the timber, without time limit or conditions. In every essential necessary to convey a fee interest in the trees, the deed conforms to the requirements of the statutes.
The relief sought by complainant’s bill is without authority; but we think it untenable and against right. No topic in the law has been the subject of a greater variety of decisions than the one involved in this suit. Each case, in a large measure, must rest on the interpretation of the particular contract under which
Since the case of Harrell v. Miller, 35 Miss., 701, 72 Am. Dec., 154, it has been uniformly held in this state that the sale of timber conveyed an interest in realty. In the case of Harrell v. Miller, on the question of whether or not the sale of growing trees is a sale of an interest in land or a mere chattel, it is said: “Upon this subject there is much diversity of opinion, both in the decisions in England and in this country. Several of these decisions from highly respectable sources hold growing trees to be mere chattels, and that contracts for the sale of them •are not within the statute. But many other cases hold this to be parcel of the land, and within the statute; and this opinion
No question of public policy is involved in this deed, so as to avoid if. The owner of the land was the owner in fee, and he might carve it up into as many different sorts of estates as the land was susceptible of, and make a good and valid deed in fee simple to each. If he has done so, and finds it inconvenient or improvident, the courts will not destroy the property rights of his vendees in order to relieve him from his own improvidence. In the case of Magnetic Ore Co. v. Marbury Lumber Company, 104 Ala., 465, 16 South., 632, 27 L. R. A., 434, 53 Am. St. Rep., 73, it is held that “a conveyance without condition or
The practical effect of the bill is to ask the court to write into the deed what it is claimed was the intention of the parties as the legal sequence of the contract made, though the instrument itself is silent as to any such intention. If the conditions sought to be ingrafted on this contract by the complainant are to be put there, it must be done by the court writing into the deed for the benefit of one of the parties a clause which is at variance with his own contract and destructive of the property right of the other party, which property right was bought from, and consideration paid to, the party asking to have same canceled. The interest of the purchaser of this timber under his deed has no less claim to the protection of the law than the interest which the seller retains in the soil. The seller of this timber seeks to haye the court do that which is in plain conflict with the rights which he has conveyed. By warranty deed he has sold this timber, received money for it, and now seeks to breach his own warranty by a proceeding in an equity court to cancel his deed, and declares that his vendee did not get what he warranted him ho would convey. There is no justice nor equity in the contention. If he desired to limit the title which he conveyed, he should have placed it in the contract. If it had been his purpose to grant him a license merely to enter the land and cut the trees, his contract should have been drawn so as to express this intention. Not having done so, it is not for us, at his instance, to give to this contract an intention which deprives the vendee of his property and is contradictory of the terms of the deed made by the vendor.
There is no law restricting the right of all persons to mako contracts to suit themselves, when the contract violates no law. The safety of commercial transactions depends upon this. Should courts undertake, because of improvidence, to set aside
It follows that the decree of the chancellor, overruling the demurrer, is reversed, demurrer sustained, and the bill dismissed.
Reversed.