135 Mich. 424 | Mich. | 1904
On July 5, 1893, complainant, being the owner in fee of the northwest quarter of section 17, township 47 north, range 36 west, by a warranty deed conveyed to F. H. Begole, of Marquette, Mich., “all the pine timber situated and being ” upon said land. By said conveyance said Begole, his heirs or assigns, were granted “eight years in which to remove said pine timber,” and complainant expressly reserved “all pine timber standing and being upon the premises * * * at the expiration of eight years from the date hereof.” January 26, 1894, said Begole sold and conveyed said pine timber to Edward W. Sparrow, of Lansing, Mich., who subsequently conveyed the same to the defendant. On the 1st day of October, 1894, complainant conveyed the east half of the quarter section of land above described to one Joseph I. Foote. Said deed contained this exception: “Excepting a fiew, or what pine timber there may be thereon, which was sold to F. H. Begole, of Marquette, Michigan. ” Said Foote conveyed to his wife, and she, on the 7th of December, 1900, conveyed said land to the defendant. On the 28th of July, 1896, complainant conveyed the west half of said land to one William E. Brim-hall. Said deed contained this exception: “Excepting, however, from this conveyance, certain pine trees now standing on said land.” Brimhall subsequently conveyed
Does complainant own the standing timber? As the deeds of the land conveyed everything not excepted, this "question will be answered by a proper construction of the exception. As the exception in the two deeds is expressed in different language, each will demand separate construction.
The deed to Foote: By this deed complainant conveyed his entire interest in the land, “excepting a fiew, or what pine timber there may be thereon, which was sold to F. H. Begole, of Marquette, Michigan.” What is the proper construction of this exception ? The case of Strasson v. Montgomery, 32 Wis. 52, is very nearly in point. There one Gleason, who owned the fee, conveyed to one White “ all the trees and timber of every kind growing and being upon said premises,” with the proviso that White should take off the trees and timber within four years. Gleason then conveyed the land to the plaintiff, “excepting and reserving a certain amount of timber heretofore sold to
“ Whether the plaintiff was entitled to recover depends upon the construction which is given to the conveyance of the timber by Gleason to White, and the exception or reservation in the deed to the plaintiff. The former conveyance was of all the trees and timber on the premises, with the proviso that White should take the same off the land within four years, or by December 4, 1870. It is well settled on principle and by authority that the legal effect of the instrument is that Gleason thereby conveyed to White all of the trees and timber on the premises which White should remove therefrom within the prescribed time, and that such as remained thereon after that time should belong to Gleason, or to his grantee of the premises. * * * Having thus ascertained what Gleason conveyed to White, we are next called upon to determine the legal effect of the exception or reservation in the deed to the plaintiff. The language is ‘ Excepting and reserving a certain amount of timber heretofore sold to Elias N. White.’ But we-have already seen that the timber sold to White was only such as he should take off the premises by December 4, 1870. Hence the timber remaining on the premises after that date is not included in the above language, and is not excepted or reserved at all, unless Hi Hi 99
The court then proceeded to discuss an alternative not material to the case at bar.
We do not think the facts in the above case differ essentially from those in the case at' bar, and, if we could approve the reasoning in that case, it would clearly lead to an affirmance of the decree of the court below. We do not think, however, that we can approve that reasoning. We cannot say that the legal effect of the conveyance to Begole was to convey the trees and timber on the premises which he should remove therefrom within the prescribed time. We think, under our decisions, we are bound to say that Begole obtained a title in prcesenti in all the standing pine timber; a title which, it is true, would terminate at the end of eight years. Hodges v. Buell, 134 Mich. 162 (95 N. W. 1078), and authorities therein cited.
Theoretically and popularly, then, it may be said that the standing pine was divided into two classes: First, that which was sold to Begole, which was limited to what he might remove in eight years; second, that which was reserved by complainant, which included all which Begole did not remove in the prescribed period. Nor do we think that we are entirely without evidence that complainant had in mind this classification. We quote from his deed to Begole:
“And the said William D. French, party of the first part, hereby grants unto the said party of the second part, his heirs or assigns, eight years in which to remove said pine timber; but he, the said party of the first, part, ex*429 pressly reserves unto himself all pine timber standing and being upon said premises at the expiration of eight years from the date hereof.”
Does not this language both indicate and convey the thought of a distinction between the timber sold to Begole and the timber reserved by French ?
In construing this exception, we are not compelled to assume that the language was used in its technical, legal sense. It is rather to be presumed, where, as in this case, the language was chosen, as the phraseology indicates, by a party ignorant of the law, that it was used in the popular sense. Stebbins v. Stebbins, 86 Mich., at page 482 (49 N. W. 294). Construing the exception upon this assumption, viz., the assumption that the clause, “which was sold to F. H. Begole,” means the timber which Begole might remove in the prescribed period, effect is given to every word of the exception. If, on the other hand, we construe the exception, as it is urged by complainant we should, on the assumption that its language was used in a strict legal sense, we give to it the same effect as if it read, “excepting all the pine timber on said land,” and thereby reject as surplusage, or at least give no effect whatever to, the limitation of the exception to the timber “which was sold to F. H. Begole.” These words were apparently chosen with deliberation. Both sound principle and authority (see Washington County Bank v. Jerome, 8 Mich. 490; Moran v. Lezotte, 54 Mich. 88 [19 N. W. 757]) compel us to adopt a construction which makes them effectual, and to conclude, therefore, that there passed to Foote the title to all the timber Hot removed by Begole within eight years.
The Brimhall deed: The language of the exception in that deed is, “excepting, however, from this conveyance, certain pine trees now standing on said land.” It is urged by complainant that, though the word “ certain ” is used, it is defined by the succeeding language, and that the exception, properly construed, extends to all the pine trees standing on the land. In support of this contention
While the language of the exception may admit of the construction claimed by the complainant, it implies a classification and a separation. It is difficult to understand why one should say that he excepted “certain pine trees now standing on said land ” when he intended to except all the pine trees standing on said land. It is possible that a court might conclude that this language excepted all the pine timber, if there was nothing by which it could be limited to less. That, however, is not this case. We have furnished by complainant’s bill evidence which, in our judgment, as already appears, shows that, in contemplation of the complainant, the timber standing on said land was divided into two classes, viz., that which was sold to Begole,' and that which was reserved by complainant. We are thereby furnished with evidence which enables us to ascribe to the words of this exception their natural and appropriate meaning.
“It is a fundamental rule that, in the construction of contracts, the courts may look not only to the language employed, but to the subject-matter and the surrounding circumstances, and may avail themselves of the same light which the parties possessed when the contract was made.” Merriam v. United States, 107 U. S., at page 441 (2 Sup. Ct. 540).
We are bound, therefore, to construe the language under consideration by the aid of this extrinsic evidence. Construing it by that aid, we must say that there is excepted from the grant of the Brimhall deed either the pine sold Begole or the pine not sold to Begole. We certainly cannot assume that complainant intended to except the
It follows that, in our judgment, complainant has no ' title to the pine in controversy, and the decree of the court below must therefore be affirmed.