60 So. 825 | Ala. | 1913
On the 19th day of April, 1901, Kate T. and Edward B. Shepard and the Mt. Vernon Lumber Company, a corporation, executed an instrument, attested by two-witnesses, containing these words: “That Avhereas said Kate T. Shepard and Edward Bruce Shepard are the oAvners in fee of certain property in Mobile county, Alabama, hereinafter more particularly described, on which said land is now timber of different kinds and qualities, and whereas said Mt. Vernon Lumber Company desires to obtain all right, title, and interest in and to such timber, for the purpose of cutting, sawing, transferring and selling the same: Now, therefore, for and in consideration of the cove
The company engaged to erect its mill on the premises, with “all reasonable speed,” and to have “the same ready for cutting and sawing timber by the 1st day of June, 1901,” to give “its thirty-sevén (87) promissory notes aggregating $7,500.00, 36 being for $200.00 each, and one being for $300.00, all dated April 19th, 1901, bearing interest at 6 per cent., the first one thereof to become due and payable on or before May 31st, 1901, and one to become due and payable on or
The instrument concludes in these words: “And the said Kate T. Shepard and Edward Bruce Shepard agree in no wise to hinder or delay the said second party in shipping or delivering lumber or logs from the said premises, either by road, water, tramway,'or railroad, provided they have paid their stumpage promptly according to the terms of this contract, and agree to pay all taxes of whatever kind or nature which may be levied on said land or timber excepting mill site and mill; and they further agree to protect and save said second party harmless and safe from any interference in the cutting or possession of such timber, logs, or lumber by any persons holding a title paramount to that of said first parties, hereby further expressly warranting the title of such lands and timber to be in themselves and free from any and all liens or incumbrances whatsoever.”
All the notes were paid before, and the lien provided formally discharged on, October 6, 1902. From the entire instrument it must be concluded that the intent of the parties and the legal effect of the instrument was to vest, in presentí, in the company the legal title to
It has been long since finally settled in this state that standing timber is a part of the realty, and that ejectment is an appropriate remedy to recover its possession.—Heflin v. Bingham, 56 Ala. 566, 574, 28 Am. Rep. 776; Milliken v. Faulk, 111 Ala. 660, 20 South. 594; Harrell v. Mason, 170 Ala. 282, 54 South. 105, Ann. Cas. 1912D, 585; Rothschild v. Bay City Co., 139 Ala. 571, 36 South. 785; Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 South. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58; Magnetic Ore Co. v. Marbury Lumber Co., 104 Ala. 465, 16 South. 632, 27 L. R. A. 434, 53 Am. St. Rep. 73; Inglis v. Freemen, 137 Ala. 298, 300, 34 South. 394; Christopher v. Curtis Lumber Co., 175 Ala. 484, 57 South. 841.
It is also settled here that where the title to growing timber is conveyed, and the grantee delays beyond the period fixed in the instrument within which he may remove his timber, or, if no such limitation is fixed in the instrument, he delays beyond a reasonable time to remove his timber, he is guilty of a trespass in entering the land for the purpose of removing his timber.—Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 South. 858, 9 L. R. A. (N. S.) 663, 123 Am. St. Rep. 58; s. c., 158 Ala. 637; Goodson v. Stewart, 154 Ala. 660, 46 South. 239; Magnetic Ore v. Marbury Lumber Co., supra.
The bill in this instance would invoke aid of a court of equity to enable it (appellant) to enter upon the
As appears, the five years within which under the instrument of conveyance appellant was required to remove its timber expired before this bill was filed. To now, under any sanction, enter for the removal thereof, would be a trespass — a wrong. Equity’s process and powers cannot be so employed.
The demurrer was properly sustained.
Affirmed.