Crorow Hardwood Co. v. Burks , 149 Miss. 327 ( 1928 )

^* Corpus Juris-Cyc References: Estates, 21CJ, p. 1017, n. 26; Logs and Logging, 38CJ, p. 161, n. 84; p. 164, n. 25. This is an appeal from a decree for the appellee against the appellant, for the value of trees cut and removed by the appellant from land owned by the appellee.

In December, 1903, Joseph Burks, who then owned the land, conveyed to R.C. Coldwell "all the standing, live, round, and growing timber, except pine and water oak," growing thereon. The deed stipulated that:

"The said R.C. Coldwell and his assigns shall have the right to enter upon said land at any time during a period of twenty years from date hereof, . . . and that he and his assigns shall have the right to cut and remove said timber at any time during said period that they may see fit."

On February 16, 1918, the timber acquired by Coldwell under this deed was still on the land, and was vested in David Baird by mesne conveyances from Coldwell. On that day Joseph Burks executed and delivered to Baird a deed reciting:

"I have this day sold, and do by these presents hereby bargain, sell, convey and warrant unto the said David Baird all the timber which I own of any and every kind, lying, standing, or being on the lands described as follows: [Here follows a description of the same land described in the Coldwell deed, and also forty acres of land not described in the Coldwell deed.] . . . For the consideration aforesaid I hereby grant unto the said David Baird or his assigns, the right of ingress and egress in, to, upon and across the said land, . . . for the removal of the said timber for the period of fifteen years from the date of this instrument."

Baird conveyed the timber to the appellant; and, after the expiration of the time within which the timber could be cut and removed from the land under the deed from Burks to Coldwell, the appellant entered upon the land and cut and removed therefrom timber, other than pine and water oak, which was on the land when the deed from Burks to Coldwell was executed, for the recovery of the value of which this suit was brought.

In November, 1922, prior to the cutting of the timber by the appellant, Joseph Burks conveyed the land to the appellee.

Two reasons only are assigned by counsel for appellant for the reversal of the decree of the court below. These reasons are:

First. Coldwell and his assignees acquired "a perfect, complete, and fee-simple title to the timber and trees" by the deed executed to Coldwell by Burks, which title was not divested by the failure of Coldwell and his assignees to cut and remove the timber from the land within the twenty years granted for that purpose, this limitation on the right to enter upon the land being "in no proper sense a limitation on the grant . . . to the timber and trees conveyed by the deed."

Second. The deed from Burks to Baird conveyed all the timber on the land, subject to the right of Coldwell and his assignees to cut and remove that portion of it that was conveyed by Burks to Coldwell, and, on the expiration of the time limit in Coldwell's deed for the cutting and removing of the timber, it passed to Baird under the deed from Burks to him.

The first of these questions is ruled against the appellant byLadnier v. Ingram-Day Lumber Co., 135 Miss. 632, 100 So. 369, wherein it was held that a deed, similar to the one here in question, vests the title to the timber therein conveyed in the vendee, subject to defeasance as to the timber not removed within the time limit.

After the execution by Burks of the deed to Coldwell, he ceased to own, and had no estate in, the timber therein conveyed, and had thereafter merely a possibility of reacquiring the timber by its reverting to him in the event it should not be cut and removed from the land within the time limited therefor; "this possibility being known as a possibility of reverter." 1 Tiffany on Real Property (2 Ed.), 335; 23 R.C.L. 1101; 21 C.J. 1017; Challis on Real Property (3 Ed.), 83; Gray on the Rule Against Perpetuities (3 Ed.), section 13.

We will assume, as have counsel for both the appellant and the appellee, but merely for the sake of argument, and without intending to express any opinion thereon, that a possibility of reverter is alienable. The question is, is the timber to which Burks had this possibility of reverter included in the description of the timber conveyed by him to Baird? If the words "which I own" had been omitted from the description of the timber in the deed from Burks to Baird, the description would, of course, have included all of the timber then on the land. These words must be given some meaning, and, as they cannot enlarge the description of the timber, they must be held to restrict it; otherwise they will be wholly inoperative. The words, "all the timber which I own," are naturally understood to mean all the timber which I now own, which is equivalent toall the timber which I have not heretofore conveyed, and such is the construction which should be here given by them.Fitzgerald v. Libby, 142 Mass. 235, 7 N.E. 917; 6 Words and Phrases (1 Ed.), 5131; 3 Words and Phrases (2 Ed.), 844. The words "which I own" therefore restrict the timber conveyed to such only as the grantor then owned, and do not include such as he only had a possibility of thereafter acquiring.

Affirmed.