Davis v. Miller-Brent Lumber Co. , 151 Ala. 580 ( 1907 )

SIMPSON, J.

This was an action of trespass to lands by cutting timber thereon. The plaintiff proved title in the lands and that the timber had been cut by the defendant in December, 1905, and January, 1906. The defendant claimed that in June, 1897, the plaintiff, with her husband, (I. E. Davis, conveyed to defendant all the timber which could be cut in seven years, and that on February 17, 1902, plaintiff and her husband executed another paper extending the previous timber lease for íavo years. The lands originally belonged to said G. E. Davis, but he conveyed them to his said Avife January 12, 1900.

The plaintiff asked the witness Douglass' “What is the present value of pine timber, estimating the same by the cubic foot?” to which defendant objected. The court sustained the objection, and ruled that it would confine plaintiff to proof of the value of the timber at the time of the cutting. While the ruling Avas erroneous it was without injury, as its effect was to allow plaintiff more proof in that direction than he was entitled to. The only count in the complaint is for trespass quare clausum fregit, and not for trespass de bonis asportatis. I-Ience the value of the timber had nothing to do with it, but the measure of the damages ivas the injury to the land, or, in other words, the difference between the value of the land before and after the trespass. — White v. Yawkey 108 Ala. 270, 274, 19 South. 360, 32 L. R. A. 199, 54 Am. St. Rep. 159; Warrior Coal & Coke Co. v. Mabel Mining Co., 112 Ala. 624, 626, 20 South. 918; Brinkmeyer et al. v. Bethea, 139 Ala. 376, 378, 35 South. 996.

The defendant offered in evidence an instrument, which wo construe to be a conveyance of all the “pitch pine trees” on the land in question which could be cut in seven years. Plaintiff claims that, at best, it was a mere license. Even if it was a license, it was for a valuable consideration and coupled with an interest, and would not be revocable. The case of Colby-Hinkley Co. v. Jordan, 146 Ala. 634, 41 South. 962, and the case of Riddle v. Brown, 20 Ala. 412, 56 Am. Dec. 202, on which it is based, rest upon the fact that the agreement was not in writing, so that, under the statute of frauds, it could not operate as a conveyance, and lienee was only a revocable license.

This deed wars dated June 30, 1897, was signed by said Davis and wife, and conveyed to the H. L. Berry Company, with the ordinary acknowledgment, but contained no separate acknowledgment by the wife, as required in conveyances of the homestead. The plaintiff objected to the introduction of this deed, first, because it conferred no right to enter upon the lands or cut the trees; second, because it was incompetent; third, illegal; and, fourth, immaterial and irrelevant — which objections the court overruled. What we have here said about the nature of the instrument disposes of these objections, except that plaintiff claims that the deed was incompetent and illegal because the lands in question constituted the homestead of said J. E. Davis, and there was no separate acknowledgment-by the wife, according to section 2034, Code 1896. The reason of the decision in the case of Milliken & Co. v. Carmichael, 139 Ala. 227, 35 South. 706, 101 Am. St. Rep. 49, which held that the husband could lease the turpentine rights without the wife’s separate acknowledgment, was that the resin was considered the mere fruit or product of the -tree, and not the tree itself. This court had previously - held that a right of way could not be conveyed over the lands of the homestead without- the separate acknowledgment by the wife. —McGhee et al. v. Wilsos, 111 Ala. 615, 20 South. 619, 56 Am. St. Rep. 72. We held again that a grant of the right to take ore from the land, whether called “royalty” or by any other name, was a conveyance of a part of the land, and that it must be executed accordingly. — Brooks et al. v. Cook, 141 Ala. 499, 38 South. 641. The Supreme Court of Mississippi has held that the growing trees are, a part of the land, and that a sale of them is a sale of an interest in the land, and, being on the homestead, a conveyance thereof must be joined in by the wife, according to their statute. — McKenzie v. Shows, 70 Miss. 388, 391, 12 South. 336, 35 Am. St. Rep. 654. In fact, there is no controversy about the fact that grOAving trees are a part of the realty; and, as our statute secures the entire homestead to the use of the famliy, unless conveyed in the manner prescribed, we cannot see Iioav a part of it could be carved out in any other way. So that, Avichout more, this deed Avoiild have been inadmissible in eAddence.

But the rights under this deed expired in 1904, unless extended, and,-the only object in introducing it Avas to-explain the deed made by Mrs. Davis and her husband to Duvall; the property then being her separate estate. By that deed they convey to Duvall all the pine timber on the land, and also certain turpentine privileges, for five years, and provide that the deed is to be turned over to the II. L. Berry Lumber Company, Duvall retaining the turpentine privileges; and it goes on to provide that “this deed is to. be an extension of the deed that the H. L. Berry Company now holds.” This deed ratified and extended the original deed. — Milliken & Co. v. Carmichael & Flynt, 134 Ala. 623, 625, 626, 33 South. 9, 92 Am. St. Rep. 45. At any rate, the cutting of timber occurred after the execution of said deed to Duvall.

There is no force in the objection that the first-named deed was not admissible, because the time limit therein had expired, and that the deed, subsequently introduced, to Duvall, does not refer to it, because this deed is made to the H. L. Berry Company, while the Duvall deed provides that it is to be turned over to the H. L. Berry Lum-. her Company. Said latter deed refers to said company under both names, the “IT. L. Berry Lumber Company,” and the “H. L. Berry Company,” so that it would be a reasonable conclusion that the same party was referred to, notwithstanding the slight variance in its name. Besides, the conveyances in evidence show that it was at different times designated by both names.

It is admitted that the appellee is the Berry Lumber Company; its name having been changed to the Miller Brent Lumber Company. Said deed to Duvall conveyed to him all of the pine timber on the land, but states that “it is understood that this deed is to be turned over to the IT. L, Berry Company,” that Duvall is to retain the turpentine privilege, and “this deed is to be an extension of the deed that the II. L. Berry Company now holds.” We do not know of any more appropriate way for Duvall to comply with the instruction in the deed than to execute a quitclaim deed to the Berry Lumber Company. Hence the objections to that quitclaim deed are without merit.

While the deed of G. E. and J. E. Davis to W. M. Duvall is peculiar, yet it clearly conveys the timber to Duvall and his heirs and assigns, and the statement that it is understood that’ the deed is to be turned over to the Berry Lumber Company does not deprive the deed of its operation as a conveyance to Duvall, so that, when he conveyed his interest in the timber by quitclaim to said Berry Company, it did operate, in effect, to extend their rights in the timber for two years, and leave' Duvall merely owner of the turpentine privilege. So there was no error in overruling the objections of the plaintiff to the introduction of said deed and quitclaim.'

The question to the witness Bennett as to how far the railroad tracks of the Berry Lumber Company were from the lands was entirely irrelevant to any issue in this case, and the court cannot be placed in error for excluding the same. The same is true with regard to the question to the same witness as to whether he had endeavored to get an agreement from the plaintiff to extend the Berry lease.

There was no error in the refusal of the court to give the general charge in favor of the plaintiff.

Charges 2, 3, and 4 were misleading, as the pertinency of this deed depended on the subsequent conveyance, and not upon its original validity.

Charges 5 and 6 were properly refused, because they ignored the claim of the defendant that it had bought from plaintiff the timber on the land, with the right to enter and cut the same.

From what has been hereinbefore said with regard to the measure of damages in this case, it results that •cliarge 7, requested by the plaintiff, was properly refused.

From what has been heretofore said in regard to the ■deed of plaintiff to Duvall, it results that charge 9, requested by plaintiff, was properly refused.

Charge 10 was properly refused, as shown by what has bet'ii said in regard to the deed from plaintiffs to Duvall.

Charges 10 1-3 and 13 were misleading, as tending to make the impression on the jury that the deed referred to was the only basis of claim to the timber by the defendant.

Charge 15, requested by the plaintiff, was argumentative, and invaded the province of the jury. Consequently it was properly refused.

Charge's 1C and 18, requested by the plaintiff, were properly refused, as they ignored entirely any rights which the defendant acquired under the deeds in evidence.

From what lias been said about the Duvall deed and quitclaim, it is evident that charge. 19, requested by the plaintiff, was properly refused. The charge was misleading.

The judgment of the court is affirmed.

Tyson, C. J., and Haralson and Denson, JJ., concur.