Milliken v. Faulk , 111 Ala. 658 ( 1895 )

COLEMAN, J.

One J. D. Calloway, by written instrument, did thereby “lease to said Milliken all the pine timber growing on the following lands, viz. : [describing them] , for the term of three years beginning on the first day of boxing and ending on the ..............” Milliken did not record this agreement. Subsequently, J.D. Calloway sold and conveyed by absolute deed to the respondent the same lands for a valuable consideration. At the time of his purchase and payment, Faulk had no notice, actual or constructive, of the agreement between Calloway and plaintiff Milliken,

The one material question presented by the record is, whether the agreement between Calloway and Milliken, by which Milliken acquired an interest in and use of the trees for three years, is an unconditional conveyance of real property, within the meaning of section 1810, which declares that “conveyances of unconditional estates and mortgages, or instruments in the nature of a mortgage, of real property, &c., are void as to purchasers for a valuable consideration * * * having no notice thereof, unless recorded within thirty days.” The only argument of appellant to show that the -agreement is not a conveyance within the meaning of the statute is, that the estate acquired by the agreement was “personal property,” and not an estate of real property. In the case of First National Bank v. Consolidated Electric Light Company, 97 Ala. 465, it was said : ‘ ‘A chattel real, such as a freehold interest in lands, though personal property, has different attributes, from those of other chattels. It is an immovable thing, attached to and issuing out of lands and this we understand to be universally correct. A leaso is a contract or agreement' for the possession and profits of lands and tenements.— 12 Am. & Eng. Encyc. of Law, 976. Strictly speaking, it is not a term applicable to chattels, which are not attached to or issue out of realty. A lease is a conveyance or grant. Winfield Adjudged Words, 356; Rapalje Law Dict., Vol. 2, Lease; Bouvier Law Dict. The use of the word “lease” in the agreement operated to convey. Growing timber is a part of the realty. It can not be sold and conveyed to another except by instrument in writing. A lease of such interest for a longer period than one year is required to be in writing by the statute of frauds. In our opinion, the instrument conveyed an unbonditional estate of real property. If such an instrument is -not required to be recorded, there is no law which requires that a lease of lands for a period of twenty years should be recorded. Such a construction would defeat the very purposes of the statute of registration. We are aware that there are conflicting decisions as to whether a lease or an instrument of this character comes within the provisions of the statute which requires the recording of conveyances. — 12 Amer & Eng. Encyc. of Law, 976. We are of opinion that the agreement is within the letter and spirit of the statute, and must be recorded as against innocent purchasers. The decree of the court is in accordance with this conclusion, and must be affirmed.

Affirmed.