Nichols v. Day

128 Miss. 756 | Miss. | 1922

Smith, C. J.,

delivered the opinion of the court.

This is an appeal to settle the principles of the case from a decree overruling a demurrer to an original bill. The bill alleges, in substance:

That A. H. Nichols executed in September, 1899, a deed to certain described land to the appellees, his Avife and children, one of the provisions of which is that “said Mrs. Bettie Nichols shall hold in trust for herself and other heirs named as parties of the second part the above-described land, and shall pay out of the rent or proceeds of said land the folloAving notes when due, namely: One note due Miss M. K. Walker for two hundred and eighteen dollars] one note due Mrs. Bettie Nichols for one hundred dollars. After the notes are paid the said Mrs. Bettie Nichols shall have all proceeds of said land for the support of herself and all the parties herein named, and at her death shall be equally divided amongst the six children of said A. N. Nichols. Furthermore, the said Mrs. Bettie Nichols shall sell by the consent of A. N. Nichols any part or all of the above-described land for the support of the children of said A. N. Nichols.” That in May, 1907, A. N. Nichols and his wife, Bettie, executed a deed to Stinson & McCullough, conveying to them all of the timber of certain dimensions on the land described in the deed from Nichols to his wife and children “for a term of ten years in which to remove in the event the same has not been removed by paying a penalty of ten per cent, per annum for each renewal.” That A. N. Nichols is now dead. That the appellee is the owner by mesne conveyances from Stinson & McCullough of all the right and title to the timber conveyed in the deed 'to them from A. N. and Bettie Nichols. That the ten years granted in which to remove the timber has expired, but “that your complainant and those under whom he claims have.from year to year on or before May BOth of each year since and including the year 1917 paid to the defendant Bettie Nichols the sum of two hundred and thirty dollars, Avhich was by her accepted, for the purpose of continuing in force complainant’s right to cut and remove said timber. That your complainant is now ready and willing to pay another annual renewal penalty of two hundred and thirty dollars to pei'fect and keep alive his right to cut and remove said timber within the period of twelve months beginning May 30, 1921.”

The bill then alleges that a controversy has arisen, the exact nature of which is not clear, between the appellants and the appellee, and between Mrs. Bettie Nichols and the other appellants, and prays for a decree, the exact nature of Avhich also is not clear. Counsel both for the ap-. pellants and the appellee construe the deed to the timber from the Nicholses to Stinson & McCullough to grant a perpetual right to the grantees for an annual extension of the time to remove the timber after the expiration of the ten years therein provided for one year upon the payment by the grantees of ten per cent, of the purchase money of the timber for each annual extension, which construction will be accepted by us.

The grounds upon which the appellants seek to reverse the decree of the court below as set forth in the brief of their counsel, and to which this opinion will be limited, are:

First. That the original conveyance from A. N. Nichols and Bettie Nichols to Stinson & McCullough limited the time of cutting and removing said timber to ten years, and could not be extended after that time, as to do so would make the conveyance a perpetuity.

Second. That, if it could be extended, it could only be done by the consent of A. N. Nichols, as provided in the deed, and, A. N. Nichols being dead, no one could agree to the extension for him except all of the owners of the land.

Third. That the original conveyance to Stinson & McCullough provided that an extension could be had upon payment of ten per cent, of the purchase price to the then owners of the land, who-were appellants, except Mrs. Bettie Nichols, who only had a life interest in the property, and consequently had no title or interest in the timber, and, as none of the appellants who owned the timber had been paid the ten per cent, renewal price, then the time for cutting and removing the timber could not be extended by Mrs. Nichols alone.

1. The rule against perpetuities, as stated in- Gray’s Buie against Perpetuities (3 Ed.), section 201, is as follows:

“No interest subject to a condition precedent is good, unless the condition must be fulfilled, if at all, within twenty-one years after some life in being at the creation of the interest,” or “No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.”

As stated in 1 Tiffany on Eeal Property (2 Ed.), section 179, it is:

“Any limitation or provision the purpose or possible effect of which is to cause an estate to commence in the future is invalid if, as a result thereof, an estate may commence more than twenty-one years after a life or lives in being.”

Prom these statements of the rule it will be seen, and the courts hold, that it has no application to vested interests, but only to such interests as may not vest within the prescribed period of time. Gray’s Rule against Perpetuities (3 Ed.), section 205; 1 Tiffany on Real Property (2 Ed.), section 183.

The interest in the timber and the land on which it stands conveyed by the deed from the Nicholses to Stinson & McCullough, and which the appellants claim violates the rule against perpetuities, is the right to a perpetual renewal of the time in which to cut and remove the timber. This right, or the interest in the timber resulting therefrom, is not subject to any condition precedent, but is a part of the grantees’ present interest in the timber, having vested in them at the time the conveyance was made, and has always been under their and their grantees’ control, and that this vested right to an extension of time within which to remove the timber may be exercised after the expiration of the time fixed by the rule against per-petuities does not affect its validity. Gray’s Rule against Perpetuities (3 Ed.), section 230; 1 Tiffany’s Real Property (2 Ed.), section 183.

It was settled in Butterfield Lumber Co. v. Guy, 92 Miss. 361, 46 So. 78, 15 L. R. A. (N. S.) 1123, 131 Am. St. Rep. 540, that a. convey anee of standing timber without a limitation on the time in which the timber must be removed is valid and vested in the grantee the right to burden the land on which the timber is situated with the timber foreVer, and to cut and remove the timber at any time, however remote, that he may desire. The only difference in legal effect between the deed there and the one here in question is that in the former the grantee had the right to burden the land with the timber forever and to remove it at any time in the future that he might desire without paying the owner of the land any compensation other than the original purchase price of the timber, while in the latter the grantee must pay for that privilege a certain sum per annum after the expiration of ten years, and why the one should be valid and the other not is not apparent.

“An estate for years [which for all practical purposes the one here in question is] with a perpetual covenant for renewal is, so far as questions of remoteness are concerned, substantially a fee, and as such it is regarded.” Gray’s Rule against Perpetuities (3 Ed.), section 230 ; Copiah Hardware Co. v. Johnson, 123 Miss. 624, 86 So. 369.

The right to the perpetual renewal of the time in which to remove the timber does not violate the rule against per-petuities.

2. The consent of A. N. Nichols to the extension of time for the removal of the timber was granted in the deed by which the timber was conveyed.

3. The deed from Nichols to the appellee provides that “Mrs. Bettie Nichols shall have all proceeds of said land,” etc., and the money to be paid by the appellant for the extension of time in which to cut the timber is a part of the proceeds of the sale thereof; consequently it should be paid to Mrs. Nichols, and, when paid, will entitle the appellee to the extension.

Affirmed and remanded, with leave to the appellants to answer within thirty days after the filing of the mandate ui the court below.

Affirmed mid remanded.