Orrell v. Bay Manufacturing Co. , 87 Miss. 632 ( 1905 )

Truly, J.,

delivered the opinion of the court.

It is true that the agreed statement of facts shows that the turpentine lease of the pine timber was entered into before the homestead entry of the Iiodes had been perfected. But the lease itself does not show that any of the trees were to be boxed or cut for turpentine purposes, or that the right of way over the lands was to be actually used, until after the homestead entry had been confirmed and perfected. The lease of the trees for turpentine purposes was for three years from the time the boxes were cut, but the lessees were granted fifteen years within which to enter upon the premises by virtue of their lease and to cultivate the turpentine orchard. The lease also states that it was made for the improvement of the lands. So that, for aught that appears in the body of the lease, it was not within the contemplation or intention of the parties that any of the trees on the land were to 'be cut or boxed for turpentine purposes until after the homestead entry had been finally perfected and confirmed by grant. The agreed statement of facts contains no allegation that the timber was, in fact,* cut, or the right of way made use of in any manner, until the Iiodes became the absolute owners of the lands. On the contrary, by implication, at least, it appears that appellee had not in any manner attempted to operate under the lease until, by operation of law, the Iiodes became the absolute owners in fee simple of the lands and timber. Therefore, in the instant case, even if it were to be conceded that a lease for turpentine purposes of standing timber upon an incomplete homestead entry, actually put in operation before the title from the government had finally passed, was invalid, this would not have the effect of condemning the transaction here under review. Where a contract is susceptible of two interpretations and capable of being fulfilled in two distinct ways, one permitted and the other condemned by the law, that construction will be placed upon the contract which will validate it. The law presumes a lawful intent, instead of an illegal one, on the part of all contracting parties. These considerations are decisive of the case at bar, though we adhere in every particular to the propositions of law announced upon the previous consideration of this case, as reported in 83 Miss., 800 (36 South. Rep., 561).

Further consideration of the questions there presented and the decision of the supreme court of the United States in the case of Hartman v. Butterfield, 199 U. S., 335 (26 Sup. Ct., 63), confirm us in our opinion as to the correctness of the conclusion arrived at in the previous opinion.

Affirmed ^*

* A writ of error has been sued oiit in this case to the United States supreme court from the final judgment rendered -in pursuance of the foregoing opinion, and the case is now pending there. -