Polzin v. Beene , 126 Ark. 46 ( 1916 )

Hart, J.

(after stating the facts).

(1) It is first contended by counsel for defendant that if Polzin did not proceed as expeditiously as possible to remove the timber from the Beene and Sanders lands within the meaning .of the deeds, that Beene and Sanders have waived the forfeiture of their right to enter upon the lands and cut and remove the timber. That Beene and Sanders recognized the right of Polzin to have a reasonable time after they purchased the land to cut and remove the timber. If this be true it does not mean that Polzin would have the balance of the 25 years after that to cut and remove the timber, but that'he must cut and remove the timber as expeditiously as possible from that time. In construing a similar clause in other timber, deeds the court has held that it was not contemplated that the vendee should have twenty-five (25) years absolutely in which to cut and remove the timber, but that he should cut and remove the timber as expeditiously as possible and that if it required more than twenty-five years to do so he should pay the taxes thereafter assessed against the land. Louis Werner Saw Mill Co. v. Sessoms, 120 Ark. 105, and cases cited. So then Beene and Sanders having recognized that Polzin had not at the time of their purchase forfeited his right to cut and remove the timber from the land purchased by them, the most Polzin could claim is that he should only be required to cut the timber as expeditiously as possible from that date.

(2) This then brings us to the question as to whether or not Polzin cut and removed the timber as expeditiously as possible after the purchase of the land by Beene and Sanders. Beene purchased the land on January 18, 1912. His suit involved the timber on three forty acre tracts of the land. The present suit was instituted on the 22d day of June, 1915. At that time no effort had been made by the defendant, Polzin, towards cutting and removing the timber from the land. The timber was five and one-half or six miles from the main line of a railroad. There had been other timber in the same neighborhood cut and sold in the market. There was a saw mill situated in the neighborhood. Beene said that if Polzin had begun cutting the timber on his land and had used as much as one cross-cut saw regularly he could have removed the timber in one or one and one-half years. He has let over three years elapse and has not begun to remove it. So we think the finding of the chancellor that- Polzin did not cut and remove the timber on the Beene tract of land as expeditiously as possible is not against the preponderance of the evidence and under our settled rules of practice his finding will not be disturbed on appeal.

Polzin claims that he bought the land for speculation; that he did not have any mill and for that reason would not be required to cut and remove the timber until he had a market for the timber standing. We do not agree with him in that contention. It is true that in the- construction of a similar clause in other timber deeds in determining whether or not the vendee had cut and removed the timber as expeditiously as possible, we have taken into consideration the fact that the vendee had a saw mill and was cutting and removing the timber as quickly as the practical operation of its mill would admit. This was but taking into consideration the circumstances and conditions as they existed at the time the contract was made. We held that it was in the contemplation of the parties that the timber should be removed by the mill company in the ordinary course of business. Here Po]zin had no mill and admits that he bought the land for speculation. It became his duty under the contract to commence to cut and remove the timber at once and remove it as expeditiously as possible. There is no clause in the contract to indicate that he should not commence to cut the timber until after he found a market for it.

(3) Inconvenience or the cost of compliance with the contract or other like thing cannot excuse a party from the performance of 9an absolute and unqualified undertaking to do that which is possible and lawful. Ingham Lumber Co. v. Ingersoll, 93 Ark. 447, and cases cited. What we have just said applies with equal force to the Sanders land. It was also located about five or six miles from the railroad. Other parties had been in there something like a mile from this timber and cnt and removed the timber. There was a saw mill three or four miles from there, to which the timber could have been carried and sawed into lumber. There were about fifty acres of timber on the .Sanders land. His land joined the land of R. O. Beene and no effort was made by Polzin to cut and remove the timber up to the day the suit was brought.

Wynne and Tomlin sold the timber on their homesteads to Polzin on March 5, 1906. Their land was situated close to the Sanders land and the testimony shows that this timber could have been easily removed before the present suit was instituted.

It is next contended that there was a mutual mistake in the execution of the timber deed and that Polzin is entitled to a reformation thereof. Both he and Jordan from whom he purchased the timber on the Beene and Sanders tracts testified that it was their intention that he should have twenty-five years absolutely to cut and remove the timber.

We do not deem it necessary to decide whether or not the proof was sufficient to warrant a reformation. We are of the opinion that Polzin would be barred of this relief by laches.

(4) Polzin testified that he came south to buy timber lands. He evidently had a printed form, for this same clause is contained in the deeds taken from Wynne and from Tomlin. It is not claimed, or at least it is not proved, that there was any mutual mistake in the execution of the Wynne or Tomlin deeds. Then it will be taken that Polzin 'knew the legal effect of the clause in question in those deeds. They were executed on the same day as the Jordan deed. They were specially prepared by Polzin and he had had copies of the deeds in his possession ever since. There seems to be no good reason why he should desire a different contract with Jordan to that which he made with the other parties in regard to the timber. Of course he had a right to make a different contract with him, but there is nothing in the record here which would excuse his long delay, in not discovering the alleged mistake. It seems that he held the deed from the date of its execution until after deeds containing similar clauses had been construed adversely to his present contention. It was his duty to have examined the deeds within a reasonable time and discovered any mistakes that were in them. He has shown no excuse for not doing so. Therefore we are of the opinion that it would now be inequitable to allow a reformation of the deed. Louis Werner Saw Mill Co. v. Sessoms, supra.

From the views we have expressed it follows that the decree must be affirmed.