Gex v. Dill, 86 Miss. 10

86 Miss. 10 | Miss. | 1905

Galhooh, J.,

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whether void or valid, now claimed by W. A. Dill & Co., on a part of the lands hereinafter ■described, which lease was originally made or attempted to he made by Roderick Seal with the Enterprise Turpentine and Rosin Co., which instrument of writing is recorded in vol.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.

‘'‘’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 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 lands to which, the description conld' apply, and that appellant knew it applied to them; denies that the boxing did not begin until the spring previons to the filing of the hill, but, on the contrary, avers that it began more than two years before, and that, when appellant bought, appellees were in possession under the lease, and had already boxed and were operating for turpentine when the bill was filed; avers that since Seal’s death his administratrix has been paid the balance for the lease over the $350 paid to Seal, and that she has applied it to the payment of his debts; and that she applied for and got a decree for the sale of the lands to further pay his debts, and in her petition for sale described these lands as being under the lease; and that at the sale Ford bought, and that he conveyed to Marble, his conveyance reciting that it was subject to the lease, and so the administratrix and heirs recognized its location; and that, but for the lease, they would have brought a far higher price at the sale. ’Appellant offered no testimony on her part. Appellees offered the lease and the petition for sale in the administration of Seal’s estate, which recites the existence of the lease. They offered then the decree of sale, report of sale showing the purchase by Ford, the confirmation of sale, and the conveyance of Ford to Marble, which conveyance recites that it was made “subject to a lease for turpentine purposes made by Roderick Seal on the above lands as shown on the records of said county.” The case was heard on the pleadings and this evidence for ap-pellees, and the chancellor decreed that “there is no merit in said bill, and the same is hereby dismissed at the cost of complainant.”

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 of Mississippi, county of Hancock,” at the head of the conveyance. In Norfleet v. Russell, 64 Mo., 176, it was held that the omission did not make the deed inadmissible. Garden City Sand Co. v. Miller, 157 Ill., 225-232 (41 N. E., 753, 755), admitted a deed omitting the- meridian, state, and county, where it appeared that the parties resided in the county, that the acknowl-edgement was made there, and possession taken by grantee. The court in that case says, “Any fact or circumstance by which the mind is convinced as to what tract was intended to be conveyed will be resorted to, instead of treating the description as a patent ambiguity,” and authorities are cited from Iowa, Wisconsin, Michigan, and Illinois. Lloyd v. Bunce, 41 Iowa, 660—667, holds that a deed omitting town, county, and state conveyed, nevertheless, an equitable interest, and the intention could be otherwise shown. In Webb v. Mullins, 78 Ala., 111-115, it was held that a deed omitting county, state, and meridian was, nevertheless, admissible, on the ground that the court judicially knew that the description could not apply to any other land in the state of Alabama. In Hawkins v. Hudson, 45 Ala., 482—494, it was held that the omission of the county is “but a latent ambiguity, and may be supplied by parol proof.” To the same purport are Atkison v. Dixon, 70 Mo., 381-393, and Mee v. Benedict, 98 Mich., 260 (57 N. W., 175; 22 L. R. A., 641; 39 Am. St. Rep., 543); Tregent v. Whiting, 14 Mich., 77; Calton v. Lewis, 119 Ind., 181 (21 N. E., 475); Beal v. Blair, 33 Iowa, 318; Russell v. Sweeney, 22 Mich., 236. See, also, 13 Cyc., 549, and the cases cited in the notes. Other authorities might be added, but we need not protract, as these and their citations suffice as to other states. In our own state, Hanna v. Renfro, 32 Miss., 125—128, was a ease where the deed omitted the county and state. The court there said: “This was no ground of objection to the introduction of the deed as evidence. It was but a latent ambiguity, which was susceptible of explanation ; and if not explained and rendered certain by other evidence, it would have been proper to move to exclude the deed for want of certainty and of identity of the land referred to in it with the premises sued for.” It will he noted that this was in an action of ejectment. In the same line is Peacher v. Strauss, 47 Miss., 358. These do not seem in conflict with Haughton v. Sartor, 71 Miss., 357 (15 South. Rep., 71), where the range is omitted. But on the record before us it is not imperative that we should take position alone on the question involved in any of these cases. Here we find, in addition, the location of the land fixed by the petition of the administratrix of Seal’s estate for the sale, and by the conveyance of Ford to Marble and the conyeyance of Marble to appellant, and by the fact .of the occupancy of the land by appellees at the time of appellant’s purchase. All this, taken in connection with the fact that appellees must claim under Ford’s deed, which conveys subject to the lease, and the conclusion is plain that Mrs. Gex cannot avoid it.

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 boxing, and the parties put in possession, and there is an end of it, as we think.

Affirmed.