Lowery v. Williams

Ethridgei, J.,

delivered the opinion of the court.

This suit originated in the justice of the peace court, and was an action of replevin for the possession of certain logs which had been removed by Lowery and Mottley from the lands of J. E. Williams under a timber deed, the trial of which resulted in a judgment in favor of the appellee, Williams, which was appealed to the circuit court, and a judgment again rendered in favor of Williams, the appellee.

On July 11, 1923, Williams conveyed to May Bros., for a valuable consideration, all of the merchantable timber eighteen inches and up in diameter, measured at the stump, as standing and being upon the lands described in the deed. The appellants purchased the timber from May Bros. The language of the deed conveying the timber reads as follows:

“That first party, for and in consideration of the sum of one thousand seven hundred fifty ($1,750') dollars, cash in hand paid to him by second party, the receipt of which is hereby acknowledged, hereby sells and conveys to second party all of the merchantable timber eighteen inches and up in diameter, measured at the stump, that is standing and being upon certain land in Tunica county, Mississippi, described as follows, to-wit. . . .”

In another part of the deed it was recited:

“It is expressly agreed and made a part of the consideration for this instrument that time is made of the essence of this agreement, and that May Brothers, its successors and assigns, shall have and are only given until December 1, 1924, in which to cut and remove timber from the above described land. And that all the right, title, and interest of May Bros., its successors and assigns, in and to all timber not cut and removed from the above described land within the time limit, to-wit, December 1, 1924, shall ipso facto revert to and become the property of J. E. Williams. ”

It is the contention of the appellants that the words “standing and being upon certain lands ” convey not only the standing timber, but timber that is down upon the lands, while it is the contention of the appellee that said deed only embraced timber that was standing at the time of the conveyance. The court below held that the words “standing and being” embraced only standing' timber, and rendered judgment accordingly.

We are of the opinion that the words used in the deed have the meaning given to them by the court below, and that parol evidence is not admissible to show the contrary meaning. Consequently the judgment of the court below is affirmed.

Affirmed.