57 So. 258 | Ala. Ct. App. | 1911
There were two counts to the complaint in this case. In the first count it is alleged that the appellant sold on July 10, 1909, certain pine and poplar timber to appellee standing on appellant’s land, and that appellant in September and October of that year wrongfully cut from the land a lot of said poplar timber, and, without appellee’s consent, removed the said timber from the land, and the same was lost to appellee, to his damages, etc. The second count was an action in trover for the conversion of certain poplar trees of appellee by appellant. There were a number of pleas, but it seems to us that the only question requiring- our consideration are presented, by the plea of the general issue. It appears from the evidence —and there is no material conflict in the testimony—
1. It is manifest that the above’ instrument is not a deed conveying title to real estate. While many of the formalities which were required by the common law to be observed in conveying title to real estate have been dispensed with by our statutes, nevertheless an instrument conveying such title is one to which the law attaches much importance, and our statutes require that
2. Trees growing upon lands are as much a part of the land as its soils or its minerals. The same formalities must be observed in making a valid conveyance of the title to trees growing upon land as must be observed in making a valid conveyance of the title to trees growing upon land as must be observed in conveying the title to tiie land itself, and, as the above instrument was not witnessed, it is clear that it was ineffectual for the purpose of conveying the title to the trees which it describes. — Gulf Red Cedar Co. v. O’Neal, 131 Ala. 135, 30 South. 466, 90 Am. St. Rep. 22.
3. The'general rule is that contracts for the sale of standing trees specifying the time within which such trees are to be removed confer no right upon the licensee to cut and remove trees from the land of which they constitute a part after the expiration of the time fixed for their removal by the contract. — C. W. Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 South. 858, 9 L. R. R. (N. S.) 663, 123 Am. St. Rep. 58. In Alabama, when the instrument conferring such right of removal is in fact such an instrument as conveys the legal title to the trees whereby the title and ownership of the trees remain in the grantee after the expiration of the time limited in the conveyance .for their removal, our courts are disposed to grant to the grantee a reasonable time within Avhich to remove them. — Zimmerman Mfg. Co. v. Daffin, supra. The above rule, in reference to conveyances of standing timber, was adopted by our supreme court, because, in construing deeds, “conditions subsequent are not favored in law, and must be strictly con
4. When the reason of a rule ceases to operate, the rule itself becomes inoperative. While the instrument now under discussion purports to convey certain trees on the Miller place, it does not in fact do so, and as the legal title to the trees did not, by virtue of the contract of which it is written evidence, thereby vest in the appellee, we can see no reason for extending, in construing it, a doctrine which our Supreme Court has. only applied to instruments possessing the dignity and formalities of a conveyance of the title to land. “In applying rules of construction, the language employed in the instrument, the circumstances under which the contract was made, and the purpose for which it was made, are to be taken into consideration.” — Zimmerman Mfg. Co. v. Daffin, supra.
In the present case, the appellant was evidently from the very language of the instrument under some sort of an obligation to deliver the poplar timber mentioned in the contract to the Sheffield Lumber Company at fourteen dollars per thousand feet, because the appellee in the contract agrees to so deliver the poplar. When, under his agreement with the Sheffield Lumber Company, appellant was to deliver the poplar, we do not know, but in the contract with appellee he fixed the time within which the delivery was to be made, viz., by September 1st, and it was therefore within the contemplation of the parties that the poplar was to be cut and removed from the premises by September 1st. This is
It follows from what we have above said that in our opinion the appellant was entitled to the affirmative charge, which he requested the court in writing to give to the jury in his behalf.
Reversed and remanded.