70 S.E. 171 | N.C. | 1911
This action was instituted to determine the title to certain pine and poplar timber standing on the land described in the (229) complaint. The plaintiffs are L. H. Hornthal and Flora Sheleeman, who is the only heir at law of Louis Hornthal, deceased. It appears from the record that prior to 5 May, 1900, L. H. and Louis Hornthal were the owners of said land, and that on that day they executed to the John L. Roper Lumber Company a deed by which they conveyed all the pine and poplar timber on said land, not less than 11 inches on the stump when cut, with the right to enter and to cut and remove said timber within four years from the date of the deed, and that on 30 October, 1902, they (L. H. and Louis Hornthal) executed a deed to the defendants, by which they conveyed the tract of land on which the timber conveyed to the Roper Lumber Company was situate. This last deed to the defendants contains the following provision, after the description of the land, upon which the settlement of the controversy depends: "The pine and poplar timber having been previously sold to the John L. Roper Lumber Company, and is excepted from this deed." The case was submitted to the Superior Court on these facts, the defendants reserving certain exceptions to the refusal of the judge to admit evidence by them, which need not be considered.
The plaintiffs contend that the effect of the provision in the deed to the defendants is to except from the operation of the deed all the pine and poplar timber on the land measuring 11 inches and more, and that they are owners of all of said timber not removed in four years, and defendants say that it excepted the timber conveyed to the Roper Lumber Company, and that the timber conveyed was such as was cut in four years, and that all of the timber not cut and removed in four years passed to them under their deed. The judge presiding at the trial sustained the contention of the plaintiffs, and in this we think there is error.
The object of courts in the construction of a paper-writing is to discover what the parties to it intended, and whether apt language has been used to give effect to the intention. Ordinarily, this must be gathered from the paper itself; but every act has its connections and associations, and to be understood must be placed in its appropriate setting. At the time the deed to the defendants was executed, the four years (230) within which the Roper Lumber Company had the right to cut and remove the timber had not expired, and there is nothing to indicate that they did not expect this right to be exercised. The plaintiffs were executing a deed conveying the land to the defendants, and they had previously executed a deed to the Roper Lumber Company, conveying timber, and were familiar with its terms. They knew it was usual to fix the time within which the timber could be removed, and to reserve the right to enter for the purpose of cutting and removal. It is true, it is *181
not necessary to state any time within which the timber is to be removed, in a deed conveying the land and reserving the timber, and that the grantor in such deed "is not providing for timber cutting, but reserving a right, and should be entitled to hold till this is put an end to by the grantee's giving notice for a reasonable time, so that the grantor may elect to cut or sell this right to another"; Mining Co. v. Cotton Mills,
The language of the exception seems to put the matter at rest. It is: "The pine and poplar timber having been previously sold to the John L. Roper Lumber Company, is excepted from this deed." If, then, we determine what timber had been previously sold to the Roper Lumber Company, we fix the scope and extent of the exception. In speaking of a timber deed like this, Justice Hoke says, in Hawkins v. Lumber Co.,
It follows from this construction, that at the expiration of four years, under the terms of the deed, the Roper Lumber Company had no title to the timber not removed, and that the effect of the deed was to convey to the lumber company all the pine and poplar timber cut and removed within four years, and no more. The exception is no broader than this. Therefore, the deed of the plaintiffs to the defendants conveys the land and all the pine and poplar timber not cut and removed by the Roper Lumber Company within four years from the date of the deed to it.
Strasson v. Montgomery,
This case is cited with approval in Bunch v. Lumber Co.,
Reversed.
Cited: Bateman v. Lumber Co., post, 251; Jenkins v. Lumber Co., post, 357; Powers v. Lumber Co., post, 407; Wiley v. Lumber Co.,