Adams v. Young , 125 Miss. 748 ( 1921 )

Holden, J.,

delivered the opinion of the court.

This is a bill in' chancery to cancel a claim as a cloud upon the title of complainant to certain timber, and for a perpetual injunction against interference with complainant by appellees in his rights with reference to cutting and removing said timber. The case is here for the second time. Upon the former appeal, styled Young et al. v. Adams, 122 Miss. 1, 84 So. 1, this court held that the bill stated a good cause and remanded the case for furthr answer and proceedings in the lower' court.

Upon the second trial of the cause testimony was heard by the chancellor on the'question of whether the appellant, Adams, assignee of the Berrymans, had diligently complied with the terms of the timber contract, and whether it had become impossible for him to do so, and thus forfeited his rights to McIntyre, the original vendor in the timber contract between McIntyre and the Berrymans. The bill and contract are set out in full in the former decision, to which we refer as the law of the case.

We have carefully reviewed and considered the testimony introduced before the chancellor by both sides, and deem it sufficient to say, without setting out the evidence in detail, the proof was ample to warrant the chancellor in finding as a fact that the appellant, Adams, by his delay and failure to proceed to cut the timber under the .contract, and by his own testimony that he was unable to operate the mill, and consequently it became impossible to cut the timber as provided by the contract, had thereby forfeited all of his rights thereunder. Therefore we think the decree of the chanr ellor is correct.

The contract, reasonably construed, means that, if the appellant, Adams, who was the assignee from the Berry-mans and stands in their shoes, found it impossible to carry out the contract by cutting and removing the timber within a reasonable time according to its terms, then the contract was to become invalid and the timber and all of the rights going with it should revert to the appellee grantor. The contract uses the language:

“If at any time it becomes impossible for second party to cut said timber from any cause, then said first party shall have the right to take said timber and malee such disposals as he thinks best, and second party shall not have the right to object in any way.”

The evidence shows that this impossibility arose; consequently the right to retake arose.

The word “impossible” was intended to be used in a limited sense and has reference to the time and manner in which the cutting is to be done. However, the testimony in this record is such as to justify the chancellor in deciding as a matter of fact that the appellant had found it impossible to carry out the contract, and had, furthermore, abandoned the purpose of carrying it out and was endeavoring to sell the timber to other persons for several months before the sale to appellees by McIntyre.

The case before us is different from the Hines Case, 101 Miss. 802, 58 So. 650, in that no time was specified for beginning or completing the contract in the Hines Case, nor was there a provision for retaking the timber upon failure of vendee, but here the contract is obviously different in its terms.

The decree is affirmed.

Affirmed.