100 S.E. 330 | N.C. | 1919
There was judgment for defendants, and plaintiffs excepted and appealed. On the hearing it was properly made to appear (156) that on 10 March, 1916, E. T. Zollicoffer, owning a large body of land in said county, sold and conveyed to J. W. Crew the standing timber growing thereon, the provision in reference to the timber contained in the deed being as follows:
"That the said party of the second part, his heirs and assigns, *167 shall have five years from the date hereof in which to remove the timber hereby conveyed from the aforesaid tract of land: Provided, however, that he or his assigns shall, after the expiration of three years from the date hereof, pay to the said party of the first part, or the then owner of the aforesaid tract of land, 6 per centum annually, in advance, upon the amount of the purchase price aforesaid, that is, nineteen thousand dollars, for the privilege of the remaining two years in which to remove the said timber."
That on 28 March, 1916, said grantee, J. W. Crew, and wife conveyed said timber to A. C. and H.C. House, and on 6 December, 1916, said, A. C. and H.C. House conveyed the same to defendant, the Greenville Manufacturing Company, the stipulations in these conveyances as to the timber rights and interests being the same as in the first deed, etc. That on 27 December, 1916, said E. T. Zollicoffer conveyed this land, on which the timber was situate, to W. L. Long. And the lands, having been in the meantime divided into several lots, on 18 January, 1918, W. L. Long and wife conveyed to plaintiffs in the action two of said lots, Nos. 12 and 14, on which the timber in controversy is situated, both of these deeds containing a stipulation that the same were made "subject to the terms and conditions of a certain timber deed executed by E. T. Zollicoffer to J. N. Crew in 1916," etc.
That on 21 September, 1918, plaintiffs conveyed one of these lots, No. 14, to Jackson Futrell, the deed containing stipulation concerning the timber thereon as follows:
"It is distinctly understood and agreed by and between the parties to these presents that this deed does not convey and pass title to three (3) acres sold to the said G. Moody, above mentioned, by Messrs. C. A. Wyche and W. L. Long, and for which they have not yet given him a deed; also all timber rights on the land herein conveyed reserved by the said parties of the first part until 10 March, 1921." And in December following lot No. 12 was conveyed to said Jackson Futrell by plaintiff with habendum: "To have and to hold the above-described piece, parcel or tract of land, together with all privileges and appurtenances thereunto belonging, save and except all standing timber and rights thereto which are herein reserved by the said parties of the first part for a period of two (2) years from 10 March, 1919, to 10 March, 1921, to the said party of the second part, his heirs and assigns, to their only use and behoof in fee simple forever." That prior to expiration of the time (157) limit for cutting, to wit, 10 March, 1919, defendant, the lumber company, made an adjustment for privilege of further cutting, by paying to the codefendant Futrell the price for one year's *168
extension, and was proceeding to cut the timber on these portions of the land when it was stopped by restraining order in this cause. Considering these two series of deeds together, the deeds conveying the timber interests and those affecting the general title, and seeking the true intent of the parties as expressed in their entire agreements, the approved method of construction in such cases (Hornthal v. Howcott,
"It is distinctly understood and agreed by and between the parties to these presents that this deed does not convey and pass title to three (3) acres sold to the said G. Moody, above mentioned, by Messrs. C. A. Wyche and W. L. Long, and for which they have not yet given him a deed; also all timber rights on the land herein conveyed reserved by the said parties of the first part until 10 March, 1921."
And that of 31 December being:
"To have and to hold the above described piece, parcel or tract of land, together with all privileges and appurtenances thereunto belonging, save and except all standing timber and rights thereto which are herein reserved by the said parties of the first part for a period of two (2) years from 10 March, 1919, to 10 March, 1921, to the said party of the second part, his heirs and assigns, to their only use and behoof in fee simple forever."
These important provisions of the contract would to our minds be entirely without significance unless they except the title to the timber until 10 March, 1921, and reserve to the grantors during that period the payment of the purchase price. The question is, we think, virtually decided in Powell v. Lumber Co.,
In November following she sold the land to other parties "excepting the timber sold by Mary E. Sumner on said land and by her conveyed to W. W. Cummer by deed," etc. Subject to these exceptions and under mesne
conveyances the land was acquired and held by plaintiff Powell. Prior to expiration of ten years Mary E. Sumner sold and conveyed to assignee of Cummer the timber for the extension period, and it held that she had the right to dispose of the timber for the renewal period and to recover the amount which had been agreed upon as the consideration for same. As shown in the opinion referred to, the decision of Hornthal v. Howcott,
On the record there can be no claim that the lumber company has been imposed upon or that the facts present a case for an estoppel in pais. The terms of the instruments upon which plaintiffs (159) rely appear upon the face of the conveyances and ordinary care would have sufficed to fully inform and protect the company, and in such case they could acquire no more than their grantor Futrell himself owned; that is, the land except the standing timber during the life of the contract. True, in Lumber Co. v. Wells,
It will be noted that only a portion of the land was acquired by plaintiffs and conveyed by them to Futrell, and therefore they could only recover their due proportion of the purchase money. Ordinarily the defendants would have the right to require that all the owners of the land be made parties, but inasmuch as it appears that the timber on all the other parts of the land has been cut and the rights concerning the same satisfactorily adjusted, there is no reason why the present suit should not proceed as now constituted and the rights of the parties thereon determined.
This will be certified that the proportionate amount of the purchase money, i.e., the interest as stated presently due plaintiffs, be ascertained. That defendants meantime be restrained until the same is paid and on sufficient bond given to assure payment of plaintiff's reasonable recovery and costs and such further proceedings had as the legal rights of the parties may require.
Reversed.
Cited: Lumber Co. v. Valentine,