122 Ga. 327 | Ga. | 1905
There being no issue of fact involved, but the case depending entirely upon the construction of the contract between the parties, the trial judge had no discretion, and the rule that his discretion will not be controlled when it is exercised in granting a first new trial has no application.
It has been held that the effect of'- an instrument conveying timber is to convey the absolute title to the timber described; that this title is not affected by a stipulation's to when the tim
Under the clause in the conveyance, “ all the timber left thereon is to revert to the said H. G. Truitt, his heirs and assigns,” all the trees on the land clearly were the property of Truitt after the expiration of the time fixed in the contract. See Monroe v. Bowen, 26 Mich. 523. It might be suggested that inasmuch as the term “timber” could embrace cross-ties (Kollock v. Parcher, 52 Wis. 393), and as the title to the trees was always in Truitt, Johnson having a mere license to use them for a definite period and for a particular purpose, the expression “timber to revert” must refer to timber the title to which had passed out of Truitt, to wit, the cross-ties. But taking the instrument as a whole, we do not think this a fair interpretation of its meaning. The word “ timber ” ■as used in a preceding part of the deed clearly means growing trees and logs.- The same meaning ought to be attached to it in every part of the instrument, unless the context requires a different meaning. And words of doubtful meaning in a contract should be construed most strongly against the party executing the contract. Civil Code, § 3675, par. -4. Truitt may have thought that the instrument conveyed the title to the trees and logs on the land, and that it was necessary to provide that at the’ expiration of the period fixed in the instrument the timber, that is, -the trees and logs, should revert; and as we have shown above,
This being so, the question arises whether he would have a right to go upon the land and remove the ties after the expiration of the time fixed in the contract. In Halstead v. Jessup, 150 Ind. 85, it was held: “Where by a contract of sale the purchaser of certain timber is given four years to remove'it, such purchaser does not forfeit his right to remove the timber after the expiration of four years, in the absence of a forfeiture clause in the contract.” In the opinion Hackney, J., said: “ The law does riot favor forfeitures, and will not enforce them in the absence of clearly stated conditions of forfeiture. Here, as we have said, there is no stated condition of forfeiture. If, by delay in taking the timber after the period named, damage should accrue to the owner of the land, it could not be .questioned that such damage could be recovered. But it would be manifestly unjust that mere delay should forfeit both the appellant’s money and his timber, and that the appellee should become the owner of the timber upon the strength of an implied forfeiture.” We are inclined to think that Johnson had a right to go upon the laud and remove the cross-ties after the expiration of the twelve months. But whether this be so or not, certainly Truitt could not convert to his own use Johnson’s ties. One does not lose the title to his property by wrongfully leaving it on another’s premises. He would be liable for any damages occasioned by his wrongful act in leaving the property on the premises of another; and might be liable in trespass for entering the other’s premises for 'the purpose of taking possession of his property (Hoit v. Stratton Mills, 54 N. H. 109); but his wrongful act in leaving his property on the other’s premises would not justify another wrong on the part of the owner of the premises, that is, the conversion of the property to his own use. The verdict rendered by the jury was demanded, and the court erred in granting a new trial. Judgment reversed.
