295 F. 255 | 6th Cir. | 1924
(after stating the facts as above). It is claimed on the part of the Kentucky Coal Lands Company that its deed to John W. Tuggle for the standing timber on the land described in 'the petition conveyed to Tuggle, a determinable fee; that Cook had no authority as its agent to extend the term for removing the timber; and that, even if he had such authority, the title that remained in the grantor was only a possibility'of reverter, which could not be aliened to a third person.
The trial court found from the evidence that Cook was a statutory attorney of the Kentucky Coal Lands Company from the date of its organization, about 1903, until the year 1910; that during that time he was also the attorney at law and attorney in fact for the Kentucky Coal Lands Company, with power to sell timber upon its lands and make contracts concerning such sale. The finding of the trial court is sustained by substantial evidence. This court will not consider the weight of the evidence. Bristol Co. v. Boy (C. C. A.) 261 Fed. 297; Reid et al. v. U. S. (C. C. A.) 276 Fed. 253. The finding supports the conclusion of the trial court that Cook had authority to make the Tuggle extension, which conclusion we affirm.
For the purposes of this case, it is unnecessary to determine whether the estate granted to Tuggle by the plaintiff’s deed of conveyance of this timber was a determinable fee or an estate upon a condition subsequent. The claim made by the plaintiff in error that all that remained to the grantor was a possibility of reverter which could not be aliened to a third person, and that Tuggle was a stranger to the title, is fully answered by sections 2341 and 2359 of the Kentucky Statutes. 2 Stanton’s Rev. St. c. 80, § 6 (now section 2341); was construed by the Kentucky Court of Appeals in Nutter v. Russell, 3 Metc. 163, in which case that court held:
“Tlie effect of this enactment is to obviate at once all tbe difficulties growing out of tbe distinctions which had been established, by judicial construction, between such estates as were alienable and such as were not. It will not be doubted, we suppose, that under this statute every conceivable interest in, or claim to, real estate, whether present or future, vested or contingent, and however acquired, may be disposed of by deed or will.”
Section 2359 is even broader in its terms than section 2341, and applies particularly to an estate in reversion.
However that may be, this Tuggle extension did not purport to be, and was not, an alienation to a third person of the grantor’s possibility of reverter. It is clear from this evidence, and the trial court so found, that it was the purpose and intent of this paper writing to ex
While the Sudduth Case, supra, involved equitable considerations, yet in that case two or three individuals owned all the stock in the corporation, and merely used that corporation as a convenient instrumentality through which to conduct the business in which they were engaged. This seems to be true of the Tuggle Land & Timber Company, which was wholly in the control of Tuggle, and to all intents and purposes was Tuggle himself, although in legal effect a distinct and separate entity. This “Tuggle extension” was not a grant, or intended to be a grant, of the reversion, but merely a change in the time appointed. in the deed when, upon the happening of the condition named therein, the title would revest in the Kentucky Coal Lands Company. On its face it purports to be no more than an extension of this time for the benefit of the owner of the fee in the timber.
Tuggle’s name was evidently written therein through inadvertence. It contains the statement that “John W. Tuggle has instituted and is now prosecuting * * * a suit against the Mineral Development Company concerning the title to the timber.” John W. Tuggle was not individually prosecuting this suit. On the contrary, it was being prosecuted by the Tuggle Land & Timber Company. If there were any doubt that this extension was for the benefit of the then owner of the timber, Tuggle very shortly thereafter procured a reconveyance of this timber to himself, so that, as of that date, if not on the date the extension was written, the right to the extension and the determinable fee merged in one and the same person, and must now be construed the same as if the extension were written into and a part of the original deed of conveyance.
It follows that the Kentucky Coal Lands Company had no interest whatever in this standing timber in the year 1909, when it was cut and removed by the defendant, and therefore cannot maintain this action. That being, true, it is wholly unnecessary to consider and determine the question of res adjudicata.
For the reasons stated, the judgment of the District Court is affirmed.
