86 Miss. 10 | Miss. | 1905
delivered the opinion of the court.
The main purpose of the bill of Mrs. Gex, the appellant, is to remove as a cloud on her title a lease from Roderick Seal to the Enterprise Turpentine & Rosin Company. She claims the fee of the land by successive conveyances under Seal’s title, and the appellees claim turpentine rights under assignment of the lease of Seal to that turpentine and rosin company. She de-raigns title to the lands from the government into Seal; avers the death of Seal, a chancery decree authorizing a sale of the lands of Seal, a sale and conveyance under it to J. I. Ford, a conveyance by-Eord to Horace Marble and from Marble to ■her. She makes -this conveyance of the lands by Marble to her an exhibit to her hill, and it shows that it was made “including whatever right I might have, under that instrument of writing purporting to he a turpentine lease, whether void or valid, now claimed by W. A. Dill & Co., on a part of the lands hereinafter ■described, which lease was originally made or attempted to he made by Roderick Seal with the Enterprise Turpentine and Rosin Co., which instrument of writing is recorded in vol. W., at p. 201, eqc., of the records of deeds of the county of Hancock, state of Mississippi.” She also makes the assignment of this lease an exhibit to her bill, as also the lease itself; and this lease, the basis of the contentions, is as follows, the italics being ours:
■ “Roderick Seal to Enterprise Turpentine & Rosin Co.
"Slate of Mississippi, county of Hancock.
*17 ‘'‘’This indenture made this 23rd day of November, 1898, between Roderick Seal, of the comity of Harrison, and state of Mississippi, of the first part, and the Enterprise Twpentine and Rosin Company of the county of Hancock, and state of Mississippi, of the second part:
“Witnesseth that the said party of the first part for and in consideration of the sum of $350, to him in hand paid, at and before the ensealing and delivery of these presents the receipt whereof is hereby acknowledged, and of the further sum to malee the amount of six dollars per 1000 for all boxes cut, to be paid as follows: When boxes are cut and counted.
“Has granted, bargained, and leased and conveyed, and does by these presents, grant, bargain, lease, and convey, unto the said party of the second part their heirs and assigns at the rate of six dollars per 1000 boxes all of the timber upon the following described tract of land' for the purpose of boxing, working, and using said timber for turpentine purposes.
“ [Here the land is described as in the bill, the description being perfect except that no state or county is given.]
“To have and to hold, box,'work, and use for turpentine purposes unto the said party of the second part their heirs and assigns. And it is hereby expressly covenanted and agreed that the said party of the second part may. commence boxing, working, and using the said timber for turpentine purposes or any portion thereof at any time that the said party of the second part may desire, and shall have the right to continue to box, work, and use the said timber and .every portion thereof for the full term of three years beginning with reference to each portion of the timber, from the time only that the boxing and working of each portion is commenced, it being the intention of the parties that this lease shall continue to operate until all of the timber and each and every part thereof has been boxed, worked, and used for turpentine purposes for the full period of three years. And it is hereby further covenanted and agreed that the said party of the second part their heirs and assigns shall have the*18 free and unrestricted right to enter upon, occupy, and use the said land for the purpose of boxing, working, and using the timber thereon for turpentine purposes as aforesaid during the continuance of this lease. And it is further covenanted and agreed that said party of the second part may have the right at any time to assign this lease in whole or in part, and that any assignee of this lease shall have the same right of assignment and that all the rights and privileges of said party of the second part shall vest in whomsoever may succeed to the interest hereby conveyed to said party of the second part. And the said party of the first part for his heirs, executors, and administrators the said granted and leased timber with the right to box, work, and use the same for turpentine purposes unfcv the said party of the second part their heirs and assigns will forever warrant and defend
This instrument appears to be duly signed and acknowledged before a. clerk of a court of Hancock county, and to have been filed for record and recorded in that county (Hancock), in which the bill shows the lands claimed lie.
It is set up and urged that this instrument is void: (1) Dor uncertainty in not locating the land in any county or state. (2) Because it seeks to create a perpetuity in not stating the time of the commencement and ending of the right sought to be granted. (3) If good, the appellees waited nearly five years —an unreasonable time — to begin. (This is denied in the an•swer, which avers the commencement within two years, and be'fore J. I. Bord conveyed). (4) That the instrument is a mere license, and that Seal’s death revoked it, it not being coupled with an interest, as it is said.'
The answer affirms that the lease sufficiently shows the state and county; asserts appellant’s purchase with full notice of the lease and of the situation of the land; denies that the lease is vague or uncertain; asserts that the lands in controversy are the only lands in the Hnited States to which the description could apply, and are in Hancock county;' that Seal owned no other
In Howe v. Williams, 51 Mo., 252, it is held that the omission to name the state or county in which the lands lie does not make a deed incompetent as evidence. The reason given is that, as in the case before us, the lands were found to1 be in the county, the instrument executed there, the acknowledgment taken before an officer of that county, and its recordation in that county. We have all this here, and, additionally, the words “State
We cannot support the position that the lease is void as tending to create a perpetuity, in that it does not give the date when the right it grants shall begin and end. We have examined all the authorities cited in the briefs of counsel. Under them we think the most that can he claimed, if it can he, is that the work must commence in a reasonable time, and in this case we think it did commence in a reasonable time. This record does not show a lapse of thirteen years, as in cases cited, before the beginning, hut not quite two years. This conclusion does not make it necessary to decide whether or not, in this case, the delay, to he unreasonable, must pass the period of the statute of limitations.
As to the ground that the lease, as it is denominated in the pleadings, is a mere license, and that the death of Seal revoked it, we refer to it merely to compliment the force and ingenuity of counsel and to indicate our non-concurrence. The lease was for value, a part of which was paid in cash and the balance since paid to the administratrix, and it conveyed the timber and right of way for the purpose of exercising the privilege of box
Affirmed.