North Texas Lumber Co. v. McWhorter , 1913 Tex. App. LEXIS 55 ( 1913 )

The two assignments present the one question of the right of appellant, under the timber deed in suit, to enter upon the land and cut and remove the timber therefrom after the lapse of five years from the date of the deed, without any contract or agreement of extension of time. Each party to the suit stands on the terms of the deed. A construction of the deed is involved. If the conveyance, from all the language of the instrument, manifests an intention, and has the legal effect, to convey absolutely, as an interest in the land, the timber of the dimensions specified, then it must be said the case of Lodwick Lumber Co. v. Taylor, 100 Tex. 270,98 S.W. 238, 123 Am. St. Rep. 803, would be applicable, and appellant should have judgment entered for it. But we do not think the conveyance here could properly be said to intend and have the legal effect to convey absolutely, as an interest in the land, the timber of the dimensions specified. The conveyance, taking it as a whole and ascertaining what the parties really intended, manifests, we think, an intention to sell and purchase all the timber of the dimensions specified as the purchaser might cut and remove from the premises within the time limit specified, and no more. The parties were dealing with the timber as personalty removable within a limited time. And thus the legal effect of the deed is to retain in the vendor the title to the timber on the land not cut and removed therefrom by the purchaser at the expiration of the contractual period of time. In this view the rule would be applicable as laid down in the following cases: Carter v. Clark Boice Lumber Co.,149 S.W. 278; Development Co. v. Lumber Co., 139 S.W. 1015; Beauchamp v. Williams, 115 S.W. 130; Lancaster v. Roth, 155 S.W. 597 (recently decided by this court).

The many cases cited by appellee in her brief uphold such construction of this kind of deed, namely, that the purchaser acquires title to such timber only as is severed from the soil at the expiration of the time limit of the contractual period. This ruling is decisive of the appeal, and the judgment is affirmed.