McKay v. Cameron

Seawell, J. Tbe plaintiff, owner of certain described lands in Har-nett County, made a deed to S. Y. Stevens conveying all tbe pine, oak and poplar trees of certain dimensions on tbe tract described, witb provisions for ingress and egress for cutting and removing tbe timber. Witb respect to time tbe following limitations occur: “Together witb full right and privilege for and during tbe period 27 (twenty-seven) months to March 19, 1949, from tbe date of this conveyance, in person or through bis agents or servants, to enter upon said lands, and pass and repass over tbe same at will, on foot or witb teams and conveyances, to cut and remove said timber, and to construct and operate any roads, tramways or railroads over and upon said lands, as tbe said party of tbe second part, bis heirs and assigns, may construct upon and over tbe said lands so long as they may so desire, either for tbe removal of said timber or any other purpose.” “It is understood and agreed by the said party of tbe first part that tbe said party of tbe second part, bis heirs and assigns, shall have until March 19, 1949, or 27 months from date of this conveyance, to commence tbe cutting and removing of tbe said timber, and in case tbe same is not commenced within that time, then this conveyance, and all agreements and provisions hereof, are to be null and void.” Subsequently Stevens sold and conveyed tbe timber to tbe defendant Cameron in a deed of like character, passing to tbe grantee all tbe right, title and interest be bad under tbe conveyance of McKay to him, and no more. Tbe defendant entered upon tbe lands prior to March 19, 1949, and began cutting and removing timber. On March 21, thereafter, plaintiff began this action for permanent injunction against the defendant to restrain him from cutting and removing tbe timber and obtained a tempo *660 rary restraining order. The summons, complaint and restraining order were served March 21, 1949. The matter came on for a bearing before Judge Chester Morris at February Term, 1950, of Harnett County Superior Court and was heard upon stipulations of fact and under an agreement that Judge Morris should hear and determine the controversy without a jury, and consent by parties that he might sign judgment out of term and out of the county. At the hearing plaintiff offered evidence in parol by Stevens, the first grantee, to the effect (a) that it was understood between the parties to that deed that the grantee had only unil March 19, 1949, to complete the cutting and removing of the timber and (b) that he had informed the defendant of that understanding at the time he had conveyed to him and that he conveyed with that understanding. All this evidence was rejected and plaintiff excepted. The controversy turned on the proper construction of the provisions in the Stevens-Cameron deed, which are the same as those in the McKay-Stevens deed above noted. Construing the deed Judge Morris entered judgment, finding against the plaintiff, adjudging the defendant to have the right to continue the cutting of the timber, dissolved the restraining order, and retained the cause for inquest of damages allegedly sustained by defendant by reason of the restraint of his operations. 1. The parol evidence offered by plaintiff was addressed to the intent and understanding of the parties at the time the McKay-Stevens deed was made and delivered, sought to be imposed on the phraseology used in the deed, and was properly excluded. Glover v. Glover, 224 N.C. 152, 29 S.E. 2d 350; Flynt v. Conrad, 61 N.C. 190. There is no latent ambiguity in the deed, and no equity pleaded or involved, which could form an exception to the rule (of Hornbook quality) rejecting parol evidence to explain or alter an instrument required to be in writing. Such a writing is not merely a memorandum to refresh the memory of witnesses; it is a memorial which eschews and survives the faulty memory of men and speaks the truth without prejudice or bias. If subject to unlimited attack by parol the writing would become a mere ritual, affording no security for the rights which it is designed to protect. In passing on the intent and effect of these conveyances, which must be gotten from the four corners of the instrument, we are guided by the rule that in resolution of doubt in interpretation the instrument must be construed most favorably to the grantee; Sheets v. Walsh, 217 N.C. 32, 38, 6 S.E. 2d 817; Brown v. Brown, 168 N.C. 4, 10, 84 S.E. 25; Krites v. Plott, 222 N.C. 679, 681, 24 S.E. 2d 531. *661 Tbe construction put upon tbe deed in tbe court below must be approved. It follows tbat tbe defendant, tbe grantee by mesne conveyance, having entered on tbe premises within tbe designated time and begun tbe operation, has, under applicable decisions of tbis Court, a reasonable time to cut and remove tbe timber covered by the deed. Chandler v. Cameron, 227 N.C. 233, 41 S.E. 2d 753; Bunch v. Lumber Co., 134 N.C. 116, 46 S.E. 24; Hawkins v. Lumber Co., 139 N.C. 160, 51 S.E. 852; Krites v. Plott, supra. We find no error in tbe proceeding in tbe court below, and tbe judgment rendered therein is Affirmed.