58 S.E. 795 | N.C. | 1907
It appears that W. F. Grubbs died on or about June, 1907, intestate, and domiciled in said county of Northampton. The plaintiff is the duly qualified and acting administrator of his estate, and the defendants are his widow and child and only heir at law. That at the time of his death said W. F. Grubbs was the owner of certain standing timber in said county, under and by virtue of three deeds, bearing date in the year 1905, which conveyed to said intestate all the timber, except the oak, standing and growing upon certain lands, properly described and bounded, which would measure 10 inches across the stump at the time of cutting, etc., to him and his heirs and assigns, forever, with the right to enter on said lands, build tramroads, etc., and cut and remove said timber at any time, as to the first deed, within eight years from the date, with privilege of two more on (86) certain specified conditions; and as to the second and third deeds, "at any time within five years from the date, with the privilege of five more on certain specified conditions." That the intestate having died holding the interest conveyed to him by said instruments, and before the time limited for the removal of the timber had expired, the plaintiff, his duly qualified administrator, brought this action against his widow and heir at law, claiming that the timber standing and growing on said land embraced in the deeds was personal property, and his claim was resisted by the widow and heir at law, claiming that same was realty and, as such, belonged to defendants.
The court, being of the opinion that, under and by virtue of the terms of the three deeds, the timber then standing and growing upon the lands therein described was personalty, gave judgment for plaintiff, and defendants excepted and appealed.
After stating the case: There are courts which hold that in deeds and contracts for the sale of standing timber which evidently contemplate an immediate severance of the timber, or severance within a reasonable time, but conferring no beneficial interest in the soil for the purpose of further growth, such timber shall be considered as personalty, and the validity and effect of contracts concerning it shall be construed and treated in most respects as affecting that kind of property. 2 Page on Contracts, p. 992; Ewell on Fixtures (2 Ed.), 45, note 12; McClintock'sAppeal,
We are referred to Ewell on Fixtures (2 Ed.), p. 45, note 12, where a large number of cases are cited as tending to show that these deeds present a case of constructive severance, and the interest created should be considered as personalty. The author here classes growing trees with fixtures, and lays down the doctrine as claimed. A reference to these authorities, however, will show that they refer chiefly to fixtures proper, or to growing crops, about which there has been great diversity in the decisions, arising in many instances from different statutory regulations; or they were cases in jurisdictions which hold, as those referred to in the outset, that contracts for sale of standing timber, when an immediate severance is contemplated, create an interest in personalty, a principle which we have endeavored to show has not obtained with us. (92) Even in jurisdictions where this doctrine prevails it is held not to obtain when a beneficial interest in the soil is conferred for the purpose of future growth; and in the present case the contract passes the trees to be taken off in ten years and measuring 10 inches when cut, thus passing a beneficial use of the soil for the purposes of growth; so that in any event the estate created by these deeds would be held to be realty.
We are of opinion, therefore, and so hold, that on the death of the intestate the estate created by the deeds devolved upon his heir, subject to the right of dower in his widow, both interests determinable as to all timber not removed within the time specified in the deeds. There is error.
Judgment reversed.
Cited: Bateman v. Lumber Co.,