45 S.E. 539 | N.C. | 1903
This action was brought by the plaintiffs to recover damages for cutting and removing timber for a tract of land known as the Britt place. The land belonged to H. B. Parker, Sr., who in 1899, conveyed it to his sons, H. B. Parker, Jr., and Fred P. Parker. The plaintiffs alleged that they had purchased the standing timber on the land from H. B. Parker, Sr., "by a verbal contract." They introduced in evidence an agreement, in form of a deed, dated 13 September, 1897, by which the trees on the Britt place were conveyed by the plaintiff J. C. Drake to S.D. Howell Co., of which firm the defendant was a member, with the right to cut and remove the same within two years from said date, the consideration of this agreement being $250, of which sum $200 was paid by the defendants at the time the agreement was executed. (164) The defendants never entered upon the land and did not cut any timber under the agreement. Plaintiffs then introduced a contract, in form of a deed, dated 21 June, 1900, between the plaintiff J. C. Drake and one H. B. Parker and the defendants S.D. Howell Co., by which the same trees were conveyed to the defendants, with the right to cut the said timber within six months from the date of the contract. The consideration of this contract was the unpaid balance of the consideration of the first agreement and an additional sum charged for the timber, the total amount being $183.75. The plaintiffs claim that the latter contract or deed had not been delivered to the defendants, but that it was acknowledged by the plaintiff J. C. Drake and placed in the hands of one E. G. Sears, the justice of the peace who took the acknowledgment, to be delivered to defendants when the purchase money should be paid. There was evidence tending to show that the contract was sent to H. B. Parker, Jr., to be signed and acknowledged by him and returned to Sears, so that it might be delivered to the defendants when they paid the purchase money. Parker signed and acknowledged the paper and it was registered, the plaintiffs insisting that this was done in violation of the understanding, and that the agreement or deed was in fact never delivered. The plaintiff Drake was permitted to testify, after objection by the defendants, that he bought the trees under a verbal contract from H. B. Parker, Sr., and gave him $300 for them. The defendants, within six months after the date of the last contract or deed, cut and removed the trees. There was no evidence that the plaintiffs had ever had actual possession of the land or timber.
The court gave to the jury, among other instructions, the following: *157
That if they believed the evidence, the plaintiffs were the owners (165) of the timber at the time the defendants cut and removed it, unless the deed of 21 June, 1900, was delivered. The defendants excepted to this instruction, and thus is presented the only question which we deem it necessary to consider.
The testimony of the witness Drake was incompetent, as the title to real estate or to any interest in or concerning the same cannot pass by parol.McPhaul v. Gilchrist,
The plaintiff's action is, in substance and effect, one for trespass in cutting and removing the trees, and it was so treated in the argument before us. In order to recover in such an action the plaintiff must show that he was either actually or constructively in possession of the property at the time the alleged trespass was committed. There was no evidence of actual possession, and the plaintiffs are therefore driven to rely upon constructive possession. This they could have shown by proof that they had actually acquired the title from the true owner or that the defendants were estopped in some way to deny their title, for he who claims and establishes a title by estoppel is, as to those estopped, in the constructive possession of the property to which the estoppel relates, and may maintain trespass. Phelps v. Blount,
In the first place, the agreement of 13 September, 1897, had expired by its own limitation some time before the defendants entered upon the Britt land and cut the timber. The time fixed by that contract for cutting and removing the timber was two years, and this time had more than run out at the date of the alleged trespass. It is true that a party who accepts a deed poll is bound by its covenants and conditions, for if he claims the benefits of the deed he must also assume the burdens imposed by it. He cannot claim under it and against it. Fort v. Allen,
The plaintiffs contend, though, that if the defendants are not estopped by the agreement or deed of 13 September, 1897, they are by the agreement of 21 June, 1900. The jury have found that this instrument was never delivered by the plaintiffs, and that therefore it has never become a deed. An estoppel by deed cannot arise until the instrument which is claimed creates the estoppel has become effective as a deed. Smith v. Ingram,
There is an allegation in the pleadings that the plaintiffs have acquired the title to the Britt tract since this action was commenced; but this, if true, cannot help them, as a conveyance of title to the land after the defendants had committed the alleged trespass would not pass the right to the damages claimed by the plaintiffs. Such damages are personal to the owner of the property and do not pass to his grantees. Liverman v. R. R.,
It may be that the plaintiffs, if they are unable to succeed in the present form of their action, can, by amendment or a new action, recover the purchase price of the trees fixed by the contract of 21 June, 1900, as a suit for the purchase money would be equivalent to a confirmation of the deed, which was delivered without the consent of the plaintiffs. Smith v.Arthur, supra.
The defendants allege that the Parkers claimed the purchase money under the contract of 1900. If the pleadings are amended and the defendants desire the Parkers to be made parties to the action, so that the rights of the respective claimants of the purchase money may be determined and the defendants relieved of a double charge for the same, they may perhaps obtain relief under section 199 of The Code before the amended answer is filed. Clark's Code (3 Ed.), 138.
Upon a review of the whole case, we think the court erred in charging the jury that if they believed the evidence the plaintiffs were the owners of the trees, unless the deed of 21 June, 1900, had been delivered, and for this error there must be another trial.
New trial.
Cited: Morgan v. Lumber Co.,
(169)
