Ackley & Co. v. Hunter, Benn & Co. , 154 Ala. 416 ( 1908 )

TYSON, C. J.

According to our understanding of the record only one question is presented for review. That question is whether the chancellor was correct in sustaining the demurrer to the cross-bill. The only matter of relief asserted and sought by it is the right of the cross-complainants to abate the purchase price of the pine timber sold them by the complainant in the original bill, and, of course, the proper measure of damages that shall obtain with respect thereto. A copy of the conveyance of the timber is made an exhibit to the original bill. By reference to it, it will be seen that the grantor, complainant, represented itself to be the owner of certain described lands, and conveyed to the grantees, cross-complainants, “all of the pine trees standing upon said lands which were of certain size,” for which the grantees obligated themselves “to pay for such stumpage upon the lands the sum of nine dollars per acre.” There is also this further statement in the conveyance: “There are 4,386.69 acres of said lands, which at $9 per acre amount to 839,479.76, and when that amount shall have been paid * * * the stumpage for all timber hereby sold shall be deemed to be fully paid for, and all further payments on that account shall cease.” The conveyance also contains express covenants that the grantor “is seised in fee of all of said premises and that it [the grantor] will hold” the grantees “harmless against all claim of all kinds growing out of the cutting or removal of the timber hereby conveyed.”

It is manifest from the quoted recitals of the conveyance that the grantor covenanted its seisin at the date of the conveyance and also for quiet enjoyment by the grantees (Yan. Slyck v. Kimball, 8 Johns. [N. Y.] 189), and that the sale was by the acre, and not in gross— which latter proposition Ave Avill deal with more extendedly later on. The cross-bill' shows that at the date of the conveyance 380 acres of the land were in the adverse possession of third persons claiming to own same, and seeks an abatement of the purchase price to the extent of |9 per acre, the value of the stumpage fixed by the agreement of the parties, as shown by the conveyance. These averments, which must be taken as true as against the demurrer, clearly show a breach of the covenants of seisin and of quiet enjoyment, and would entitle the cross-complainants to a recovery of at least nominal damages. — Lindsey v. Veasy, 62 Ala. 424; Prestwood v. McGowin, 148 Ala. 475, 41 South. 779; Sayre v. Sheffield, etc., Co., 106 Ala. 440, 18 South. 101. This being true, the demurrer was not well taken.

As said, the sale was by the acre, and not in gross; and the correct measure of damages in such case is the purchase price per acre as stated in the conveyance. And this is true, whether the stumpage is or is not of the same quality or value per acre. — Conklin v. Hancock, 67 Ohio St. 455, 66 N. E. 518; Welch v. Browning, 115 Iowa, 690, 87 N. W. 431; Haynie v. American Trust Investment Co., (Tenn. Ch. App.) 39 S. W. 865; 11 Cyc. p. 1173; 29 Ency. Law (2d Ed.) p. 641.

The other, provision of the contract, found in the clause éxpressing the consideration for the sale of the timber, relates only to the mode of payment of the purchase price, and does not in any wise make the sale in gross, instead of by the acre. Nor does section 7 of the contract, which specifically fixes the damages in the event that certain portions of the land should turn out to belong to the grantees at the time of its making, militate against the conclusion reached. The parties having-agreed upon a fixed and uniform price, towit, $9 per acre, they are bound thereby.

The decree sustaining the demurrer to the cross-bill is reversed, and one will be here rendered overruling it.

Reversed and rendered.

Dowdell, Anderson and McClellan, JJ., concur.